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discussing case law developing this aspect of standing jurisprudence
Summary of this case from Pa. State Educ. Ass'n v. Pub. Sch. Employees' Ret. Bd.Opinion
No. 29 MAP 2020
10-20-2021
FIREARM OWNERS AGAINST CRIME; Kim Stolfer; Joshua First; and Howard Bullock, Appellees v. City of Harrisburg Mayor Eric PAPENFUSE; and Police Chief Thomas Carter, Appellants
Jasmeet Kaur Ahuja, David Newmann, Esqs., Hogan Lovells US, LLP, William J.W. Crum, Evan W. Guimond, Esqs., for Cities of Philadelphia and Pittsburgh, Amici Curiae. Martin Jay Black, Luke Michael Reilly, Esqs., Dechert LLP, Andrew S. Bruns, Brook Dooley, Esqs., for CeaseFire Pennsylvania Education Fund, et al., Amici Curiae. Rodney A. Corey, James Guthrie Mann, Esqs., Pennsylvania House of Representatives, Republican Caucus, for Republican Caucus of the Pennsylvania House of Representatives, Amici Curiae. Rachel Renee Hadrick, Kandice Kerwin Hull, Esqs., McNees Wallace & Nurick LLC, for County Commissioners Association of Pennsylvania, et al., Amici Curiae. Seth F. Kreimer, James Christopher Martin, Esqs., Reed Smith LLP, Mary Catherine Roper, Esq., American Civil Liberties Union of Pennsylvania, for ACLU of Pennsylvania, et al., Amici Curiae. Maureen Murphy McBride, Vincent Matthew Pompo, James C. Sargent Jr., Esqs., Lamb McErlane, PC, for Appellants. Joshua Garet Prince, Esq., for Appellees.
Jasmeet Kaur Ahuja, David Newmann, Esqs., Hogan Lovells US, LLP, William J.W. Crum, Evan W. Guimond, Esqs., for Cities of Philadelphia and Pittsburgh, Amici Curiae.
Martin Jay Black, Luke Michael Reilly, Esqs., Dechert LLP, Andrew S. Bruns, Brook Dooley, Esqs., for CeaseFire Pennsylvania Education Fund, et al., Amici Curiae.
Rodney A. Corey, James Guthrie Mann, Esqs., Pennsylvania House of Representatives, Republican Caucus, for Republican Caucus of the Pennsylvania House of Representatives, Amici Curiae.
Rachel Renee Hadrick, Kandice Kerwin Hull, Esqs., McNees Wallace & Nurick LLC, for County Commissioners Association of Pennsylvania, et al., Amici Curiae.
Seth F. Kreimer, James Christopher Martin, Esqs., Reed Smith LLP, Mary Catherine Roper, Esq., American Civil Liberties Union of Pennsylvania, for ACLU of Pennsylvania, et al., Amici Curiae.
Maureen Murphy McBride, Vincent Matthew Pompo, James C. Sargent Jr., Esqs., Lamb McErlane, PC, for Appellants.
Joshua Garet Prince, Esq., for Appellees.
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION
JUSTICE MUNDY
In this appeal by allowance, we consider whether the Commonwealth Court erred in concluding that Firearm Owners Against Crime (FOAC), Kim Stolfer, Joshua First, and Howard Bullock (collectively, Appellees) had individual and associational standing to challenge four of the City of Harrisburg's ordinances regulating firearms: the Discharge, Parks, Lost/Stolen, and Minors Ordinances. We affirm the Commonwealth Court because we conclude Appellees have standing to bring this declaratory judgment action before the City enforces the challenged ordinances against them.
I. FACTUAL AND PROCEDURAL HISTORY
On January 16, 2015, Appellees filed a complaint for declaratory judgment and injunctive relief against the City of Harrisburg, Mayor Eric Papenfuse, and Police Chief Thomas Carter (collectively, City) in the Court of Common Pleas of Dauphin County seeking to have the following Codified Ordinances of Harrisburg ("Code") declared unconstitutional and statutorily preempted:
As we are reviewing rulings on preliminary objections contesting Appellees’ standing, we take as true all material facts pled in the complaint and any reasonable inferences deduced therefrom. Robinson Twp. v. Commonwealth , 623 Pa. 564, 83 A.3d 901, 917 (2013).
The "Discharge Ordinance," Code Section 3-345.2 - originally adopted in 1821 - which restricts the discharge of firearms within the City of Harrisburg to firing ranges in educational institutions accredited by the Pennsylvania Department of Education and approved by either the Mayor or Harrisburg Police Chief or a firing range operated by the Bureau of Police;
The "Parks Ordinance," Code Section 10-301.13 - originally adopted in 1905 - which prohibits the possession and discharge of firearms within City parks;
The "Minors Ordinance," Code Section 3-245.1 - originally adopted in 1951 - which makes it unlawful for unaccompanied minors under the age of 18 to possess firearms outside of their residences in the City of Harrisburg;
The Discharge Ordinance provides:
No person shall fire any cannon, gun, rifle, pistol, toy pistol, or firearms of any kind within the City, except at supervised firing ranges in bona fide educational institutions accredited by the Pennsylvania Department of Education and with the approval of the Mayor or Chief of Police, or at a firing range operated by the Bureau of Police.
Code § 3-345.2. The Code provides this is a summary offense, subject to a fine of $50.00 to $1,000.00 and up to 90 days’ imprisonment. Code §§ 3-345.99, 3-399.
The Parks Ordinance provides, in relevant part:
A. No person shall hunt, trap or pursue wildlife in any park at any time, except in connection with bona fide recreational activities and with the approval of the Director by general or special order or rules or regulations.
B. No person shall use, carry or possess firearms of any description, or air rifles, spring guns, bow and arrows, slings or any other form of weapons potentially inimical to wildlife and dangerous to human safety, or any instrument that can be loaded with and fire blank cartridges, or any kind of trapping device in any park.
C. No person shall shoot or propel any object from any of the foregoing into park areas from beyond park boundaries or while in a park.
Code § 10-301.13(A)-(C) (footnote omitted). A person who violates the Parks Ordinance is subject to a citation pursuant to Pa.R.Crim.P. 51, a fine of up to $1,000.00, and up to 90 days’ imprisonment. Code §§ 10-301.99, 1-301.99.
The Minors Ordinance provides:
It shall be unlawful for any minor under the age of 18 years to have in his or her possession, except in his or her place of residence, any firearm, flobert rifle, air gun, spring gun or any implement which impels with force a metal pellet of any kind, unless said minor is accompanied by an adult.
Code § 3-345.1. The Code provides this is a summary offense, subject to a fine of $50.00 to $1,000.00 and up to 90 days’ imprisonment. Code §§ 3-345.99, 3-399.
The "State of Emergency Ordinance," Code Section 3.355.2(A)(1) - originally adopted in 1969 - which prohibits the sale, transfer, or purchase of firearms or ammunition during the period of emergency declaration by the Mayor and further authorizes the Mayor to prohibit the public possession of firearms during such a state of emergency; and
The "Lost/Stolen Ordinance," Code Section 3.345.4 - originally adopted in 2009 - which requires firearms owners to report lost or stolen firearms to law enforcement within 48 hours of discovery of the loss or theft.
The State of Emergency Ordinance provides, in relevant part:
A. Whenever the Mayor declares that a state of emergency exists, the following emergency prohibitions shall thereupon be in effect during the period of said emergency and throughout the City:
(1) The sale or transfer of possession, with or without consideration, the offering to sell or so transfer and the purchase of any ammunition, guns or other firearms of any size or description.
(2) The displaying by or in any store or shop of any ammunition, guns or other firearms of any size or description.
(3) The possession in a public place of a rifle or shotgun by a person, except a duly authorized law enforcement officer or person in military service acting in an official performance of his or her duty.
B. The Mayor may order and promulgate all or any of the following emergency measures, in whole or in part, with such limitations and conditions as he or she may determine appropriate; any such emergency measures so ordered and promulgated shall thereupon be in effect during the period of said emergency and in the area or areas for which the emergency has been declared:
...
(8) The prohibition of the possession in a public place or park of weapons, including but not limited to firearms, bows and arrows, air rifles, slingshots, knives, razors, blackjacks, billy clubs, or missiles of any kind.
Code § 3-355.2(A), (B)(8). A violation of the Emergency Ordinance is a summary offense, subject to a fine of $50.00 to $1,000.00 and up to 90 days’ imprisonment. Code §§ 3-355.99, 3-399.
The Lost/Stolen Ordinance provides:
A. Any person who is the owner of a firearm that is lost or stolen shall report the loss or theft of that firearm to an appropriate local law enforcement official within 48 hours after discovery of the loss or theft[.]
B. For the purpose of this section, the term "firearm" shall be defined as any pistol or revolver with a barrel length less than 15 inches, any shotgun with a barrel length less than 18 inches or any rifle with a barrel length less than 16 inches, or any pistol, revolver, rifle or shotgun with an overall length of less than 26 inches. The barrel length of a firearm shall be determined by measuring from the muzzle of the barrel to the face of the closed action, bolt, or cylinder, whichever is applicable.
Code § 3-345.4. A violation of the Lost/Stolen Ordinance is a summary offense, subject to a fine of $50.00 to $1,000.00 and up to 90 days’ imprisonment. Code §§ 3-345.99, 3-399.
Complaint, 1/16/15, at 9-13, ¶¶ 28-37; 18, ¶ 86.
FOAC, a statewide, non-partisan political action committee (PAC), averred that it has 1,649 members and actively works to "defend, preserve, and protect the constitutional and statutory rights of lawful firearm owners." Id. at 2-3, ¶ 3. FOAC alleged that one of its members was a City resident who was under the age of 18 and lawfully possessed firearms. Id. at 16, ¶ 60. Additionally, three individual members of FOAC were named plaintiffs in their individual capacities. Joshua First is a gun owner and City resident who fears prosecution under the ordinances. Id. at 17, ¶¶ 71, 72, 74. Howard Bullock is not a City resident but commutes daily to Harrisburg for work. Id. at 17, ¶ 79. Like First, Bullock lawfully possesses firearms and fears prosecution under the ordinances. Id. at 17, ¶¶ 77, 80. Kim Stolfer is a member and the president of FOAC. Id. at 16, ¶ 68. He does not live in Harrisburg but travels there regularly. Id. He too lawfully possesses firearms and fears criminal prosecution under the ordinances. Id. at 16, ¶ 66; 17, ¶ 69. Further, all three individual plaintiffs are licensed to carry concealed firearms in Pennsylvania. Id. at 18, ¶ 85.
Before filing their complaint, Appellees expressed to the City their concern that the challenged ordinances are unlawful and requested the City repeal them. Id. at 19, ¶ 89. However, on December 29, 2014, Mayor Papenfuse publicly declared his intent to continue to enforce the ordinances and his refusal to repeal them. Id. The Mayor was quoted in a news article as stating "[t]he city's not going to repeal its ordinances, because our police department feels that they are in the public interest, and I do too[.] ... What responsible gun owner believes guns should be recklessly discharged within the city limits?" Id. at 19, ¶ 90; id. at Ex. B (attaching Christine Vendel, Harrisburg stands firm on gun regulations despite threat of lawsuit , PENNLIVE , Dec. 29, 2014, https://www.pennlive.com/midstate/2014/12/harrisburg_gun_regulations_law.html). Further, the same article reported that "Police Chief Tom Carter said officers regularly cite violators for reckless discharge of guns in the city and when minors are caught in possession of firearms. But he could not recall an instance where anyone was cited under the lost/stolen ordinance." Id. at 19, ¶ 91; id. at Ex. B. Additionally, in a January 5, 2015 article, Mayor Papenfuse confirmed that "[p]olice do cite people for [violating the Discharge Ordinance] on a regular basis. That is a sensible measure." Id. at 19, ¶ 92; id. at Ex. C (attaching Dave Marcheskie, Harrisburg mayor fires back against gun ordinance legal threat , ABC27, Jan. 5, 2015).
In their complaint, Appellees asserted that the challenged ordinances violate the Second Amendment of the United States Constitution ("A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed") and Article I, Section 21 of the Pennsylvania Constitution ("The right of the citizens to bear arms in defense of themselves and the State shall not be questioned."). Id. at 86. They also maintained that the ordinances are preempted by Section 6120 of the Pennsylvania Uniform Firearms Act (UFA), 18 Pa.C.S. §§ 6101 - 6128, which provides that "No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth." 18 Pa.C.S. § 6120(a) ; Complaint, 1/16/15, at 86. Further, Appellees sought injunctive relief to require the City to repeal the challenged ordinances and to prevent the City from enforcing the challenged ordinances or enacting other firearms regulations. Complaint, 1/16/15, at 87.
This Court subsequently held Act 192, which added to Section 6120 a provision giving standing to people adversely affected by local gun-control laws to bring an action against the municipality, was unconstitutional as it violated the single-subject rule and was void in its entirety. Leach v. Commonwealth , 636 Pa. 81, 141 A.3d 426, 435 (2016). The general preemption provision of Section 6120(a) remains effective.
On February 13, 2015, the City removed the case to the United States District Court for the Middle District of Pennsylvania (district court), which dismissed the suit for lack of subject matter jurisdiction on March 24, 2016, concluding Appellees lacked standing under federal law to challenge the ordinances. Firearm Owners Against Crime v. City of Harrisburg , No. 1:15-cv-0322, 2016 WL 1162283, at *9 (M.D. Pa. Mar. 24, 2016). On April 25, 2016, the district court remanded the case to the court of common pleas, which then sustained the City's preliminary objection in the nature of a demurrer and dismissed the complaint on October 9, 2018, based on Appellees’ failure to plead sufficient facts to establish standing to sue. The court reasoned:
[Appellees] have not pled any facts to show that they were harmed by any of the subject Ordinances. [Appellees] do not allege that they have ever been cited or personally threatened with citation under any of the Ordinances. Rather, [Appellees] assert potential harm that is entirely speculative, as it is based on events that may never occur. This is an improper use of the Declaratory Judgments Law. See Gulnac by Gulnac v. S. Butler Cty. Sch. Dist. , 526 Pa. 483, 488, 587 A.2d 699, 901 (1991) ("A declaratory judgment must not be employed to determine rights in anticipation of events which may never occur or for consideration of moot cases or as a medium for the rendition of an advisory opinion which may prove to be purely academic.") (citations omitted). As such, [Appellees] have failed to allege facts sufficient to establish standing, and this Complaint should be dismissed.
Trial Ct. Op., 10/9/18, at 4. Appellees appealed to the Commonwealth Court.
In a 6 to 1 en banc decision, the Commonwealth Court affirmed in part and reversed in part the trial court's order. Firearm Owners Against Crime v. City of Harrisburg (FOAC ), 218 A.3d 497, 516 (Pa. Cmwlth. 2019) (en banc). The Commonwealth Court held Appellees had standing to challenge the Discharge, Lost/Stolen, Parks, and Minors Ordinances, but they did not have standing as to the State of Emergency Ordinance. Id. at 515. The court explained that "under a traditional standing analysis, the individual initiating the legal action must show that he is aggrieved by the matter he seeks to challenge", and that "[t]o be aggrieved, the party must have a substantial, direct and immediate interest in the outcome of the litigation[.]" Id . at 506. The court further elaborated:
A substantial interest in the outcome of litigation is one that surpasses the common interest of all citizens in procuring obedience to the law. A direct interest requires a causal connection between the asserted violation and the harm complained of. An interest is immediate when the causal connection is not remote or speculative.
Id. (quoting Phantom Fireworks Showrooms, LLC v. Wolf , 198 A.3d 1205, 1215 (Pa. Cmwlth. 2018) (en banc) (citations omitted)).
The Commonwealth Court held the individual Appellees had standing to challenge the Discharge, Parks, and Lost/Stolen Ordinances. Id. at 508-09. Applying the traditional standing analysis, the court concluded the individual Appellees’ interest was substantial because each individual lived in, worked in, or regularly visited the City, and the ordinances restricted their lawful use and possession of firearms. Id. Further, their interest was direct as they established a causal connection between their use and possession of firearms and the City's effort to restrict those activities by enforcing the ordinances. Id. Additionally, their interest was immediate because the ordinances presently curb their possession and use of firearms, and the City publicly indicated its active enforcement of the ordinances. Id. Accordingly, the individual Appellees had standing, and FOAC had associational standing because it alleged that at least one of its members suffered an immediate or threatened injury as a result of the action challenged. Id . at 508-09 (citing Robinson Township v. Commonwealth , 623 Pa. 564, 83 A.3d 901, 922 (2013) ; Ams. for Fair Treatment, Inc. v. Phila. Fed'n of Teachers , 150 A.3d 528, 533 (Pa. Cmwlth. 2016) ).
Regarding the challenges to the Minors Ordinance, the Commonwealth Court noted that FOAC was the only named plaintiff, and it alleged that it had members who were younger than 18, one of whom lived in the City and was subject to the ordinance. Id. at 510. The court held that FOAC had associational standing because the Minors Ordinance regulated one of its members and had a substantial, direct, and immediate effect on that member. Id. at 511.
In contrast, the Commonwealth Court concluded neither the individual Appellees nor FOAC had standing to challenge the State of Emergency Ordinance because that ordinance did not currently impose any duty or restriction on the ability to use or possess firearms within the City. Id. at 509. As the State of Emergency Ordinance requires the Mayor to declare a state of emergency before its provisions take effect, the court concluded "[Appellees] fail to allege any facts in their [c]omplaint under which we can conclude that this particular ordinance directly and immediately affects, regulates, or impairs the Individual [Appellees’] possession, use, or enjoyment of their firearms." Id. at 510 (citing Gulnac by Gulnac , 587 A.2d at 701 ). Because Appellees did not meet the traditional standing test, the Commonwealth Court considered whether they had standing as taxpayers to challenge the State of Emergency Ordinance. Id. at 514. The court explained that to establish taxpayer standing, a plaintiff must show: "(1) the governmental action in question would otherwise go unchallenged; (2) those who are directly and immediately affected by the action complained of benefit from the action and thus are not inclined to challenge it; (3) judicial relief is appropriate; (4) redress through other channels is unavailable; and (5) no other person is better suited to bring the challenge." Id. The court concluded Appellees did not meet this test because "there is no specific allegation in the [c]omplaint that the City is incurring any expense in the prosecution and enforcement of the State of Emergency Ordinance." Id. at 515. Because the ordinance was not enforceable unless the Mayor had declared a state of emergency, the court reasoned that "[t]he mere existence of the State of Emergency Ordinance, which imposes no stress on the City's coffers, poses no harm to First, Bullock, and FOAC's members as taxpayers ." Id. (emphasis in original). Accordingly, the court held they did not have taxpayer standing. Id.
The court recognized that affording traditional standing to the individual Appellees and FOAC conflicted with its precedent in National Rifle Ass'n v. City of Philadelphia , 977 A.2d 78 (Pa. Cmwlth. 2009), and National Rifle Ass'n v. City of Pittsburgh , 999 A.2d 1256 (Pa. Cmwlth. 2010), in which it "held that the plaintiffs in those cases lacked standing to challenge local gun ordinances because they failed to allege in their verified pleadings that they have actually violated the challenged ordinances, that they intend to violate the challenged ordinances, or that they have been prosecuted for violating the challenged ordinances." FOAC , 218 A.3d at 512. The court overruled the NRA cases based on this Court's decision in Robinson Township , which we decided after the NRA cases. Id. at 513. In Robinson Township , this Court reversed the Commonwealth Court's decision dismissing a physician's challenge to a statute restricting his ability to obtain and share information with other physicians about chemicals used in fracking. Robinson Twp. , 83 A.3d at 923-25. The Commonwealth Court held that the physician would not have standing to challenge the statute unless he actually requested the confidential information, and his request was either denied, or his access to the information was restricted in such a way as to prevent him from providing care to his patient, or he actually possessed the information and wished to disclose it to others in violation of the statute's confidentiality provision. Id. at 923. In rejecting the Commonwealth Court's reasoning, this Court stated:
[The physician] describes the untenable and objectionable position in which Act 13 places him: choosing between violating a Section 3222.1(b) confidentiality agreement and violating his legal and ethical obligations to treat a patient by accepted standards, or not taking a case and refusing a patient medical care. The Commonwealth's attempt to redefine [the physician's] interests and minimize the actual harm asserted is unpersuasive. Our existing jurisprudence permits pre-enforcement review of statutory provisions in cases in which petitioners must choose between equally unappealing options and where the third option, here refusing to provide medical services to a patient, is equally undesirable. See, e.g. , Cozen O'Connor v. City of Phila. Bd. of Ethics , 13 A.3d 464 (Pa. 2011) (law firm has standing to test validity of Ethics Act provision in advance of undertaking potentially prohibited action where alternative is testing law by defying it and potentially damaging firm's ethical standing and reputation; third option of maintaining client debt on books for decades equally unappealing); Shaulis v. Pa. State Ethics Comm'n , 833 A.2d 123 (Pa. 2003) (attorney has standing to challenge statutory limitation on her practice of law in certain venues without taking prohibited action that would expose her to ethical investigation she was attempting to forestall; third option of foregoing practice in area of expertise equally unappealing); see also Arsenal Coal Co. v. Commonwealth , 477 A.2d 1333 (Pa. 1984) (pre-enforcement review of regulations is appropriate where lengthy process of addressing regulations’ validity in enforcement action would result in ongoing uncertainty in industry and potential operational impediments and penalties).
In light of [the physician's] unpalatable professional choices in the wake of Act 13, the interest he asserts is substantial and direct. Moreover, [the physician's] interest is not remote. A decision in this matter may well affect whether [the physician], and other medical professionals similarly situated, will accept patients and may affect subsequent medical decisions in treating patients—events which may occur well before the doctor is in a position to request information regarding the chemical composition of fracking fluid from a particular Marcellus Shale industrial operation. Additional factual development that would result from awaiting an actual request for information on behalf of a patient is not likely to shed more light upon the constitutional question of law presented by what is essentially a facial challenge to Section 3222.1(b).
Id. at 924-925.
The Commonwealth Court concluded that Appellees, who believe the ordinances violate their rights under the United States and Pennsylvania Constitutions had "no real alternative avenue to address their grievance." FOAC , 218 A.3d at 513. Like the physician in Robinson Township , they faced the equally unappealing options of "curb[ing] their conduct to conform to the ordinances’ mandates or [ ] willfully violat[ing] the law and fac[ing] criminal prosecution." FOAC , 218 A.3d at 513. Accordingly, the Commonwealth Court overruled the NRA cases. Id.
Judge Patricia McCullough filed a concurring and dissenting opinion in which she disagreed with the majority's conclusion that Appellees did not have standing to challenge the State of Emergency Ordinance. Id. at 516 (McCullough, J., concurring and dissenting). Judge McCullough noted that Appellees alleged that they were subject to the ordinance during the pendency of this case, and they sought leave to amend the complaint to include those facts. Id. at 517. She opined that Appellees should be permitted to amend the complaint, and those facts would establish Appellees’ standing. Id. Further, she disagreed that Appellees should have to wait until a state of emergency is declared to have standing. Id. at 519. Accordingly, Judge McCullough would have granted standing to challenge the State of Emergency Ordinance, in addition to the four other ordinances. Id.
II. ISSUE AND STANDARD OF REVIEW
This Court granted the City's petition for allowance of appeal, limited to the following issue:
Whether the Commonwealth Court's decision to grant Plaintiffs, who have not been cited under the City of Harrisburg's gun control ordinances and for whom any harm is remote and hypothetical, individual and associational standing to challenge the City of Harrisburg's gun control ordinances, directly conflicts with this Court's jurisprudence.
Firearm Owners Against Crime v. Papenfuse, ––– Pa. ––––, 230 A.3d 1012 (2020) (per curiam).
Appellees did not file a cross-appeal of the Commonwealth Court's decision that they lacked standing to challenge the State of Emergency Ordinance. Accordingly, that issue is not before us in this appeal. See infra n.13.
This issue presents a question of law, over which our standard of review is de novo and our scope of review is plenary. Robinson Twp. , 83 A.3d at 917. Further, in addition to accepting all well-pled material facts in the complaint as true, we will affirm an order sustaining preliminary objections based on standing only if the plaintiff is clearly not entitled to relief as a matter of law. Id.
III. INDIVIDUAL AND ASSOCIATIONAL STANDING
A. PARTIES’ ARGUMENTS
The City contends that Appellees lacked individual or associational standing because they did not aver that they were arrested for violating the ordinances or that they changed their behavior to comply with the ordinances. City's Brief at 11. Due to the absence of allegations of actual or imminent injury, the City maintains Appellees’ case is grounded on hypothetical future injuries that may never occur. Id. at 14. Because "[t]he ‘keystone to standing ... is that the person must be negatively impacted in some real and direct fashion ,’ " the City argues that Appellees’ claims based on only potential future harm are insufficient to establish standing. Id. at 13-14 (quoting Pittsburgh Palisades Park, LLC v. Commonwealth , 585 Pa. 196, 888 A.2d 655, 660 (2005) (emphasis added)). To illustrate its position, the City highlights that the Lost/Stolen Ordinance does not apply until a firearm is lost or stolen, and Appellees did not allege that any of them lost a firearm or had one stolen. Id. at 15. As such, the City argues Appellees do not have an "immediate" interest in the legality of the Lost/Stolen Ordinance. Id. Additionally, the City maintains Appellees’ interest is not substantial because it is not different from the interest of anyone who lives in, works in, or travels to the City. Id. at 18 (citing Fumo v. City of Phila. , 601 Pa. 322, 972 A.2d 487, 496 (2009) (explaining a plaintiff has a substantial interest "if his interest surpasses that of all citizens in procuring obedience to the law")). Because Appellees did not meet their burden of showing their interests surpass the interests of the general population, the City argues the Commonwealth Court erred in granting them standing. Id. at 19.
Amici Curiae CeaseFire Pennsylvania Education Fund and Giffords Law Center to Prevent Gun (collectively CeaseFire) Violence express concern that giving standing to Appellees, based on their fear of prosecution alone, would increase litigation against local governments and, in turn, serve to chill innovative local legislation. CeaseFire Amici Brief at 15-17.
Amici Curiae the County Commissioners Association of Pennsylvania, Pennsylvania Municipal League, Pennsylvania State Association of Township Supervisors, and Pennsylvania State Association of Boroughs (collectively Local Government Amici) argue that Appellees do not have standing because their complaint does not aver that the challenged ordinances have impaired their conduct in any manner and, thus, their interest in the ordinances’ legality is no different from any other citizen. Local Government Amici Brief at 10-12. Moreover, they assert that standing in a declaratory judgment action requires a showing of imminent or inevitable litigation. Id. at 13.
Amici Curiae Cities of Philadelphia and Pittsburgh (collectively Amici Cities) agree Appellees do not have standing because they did not show a threat of enforcement or allege the ordinances regulate their behavior. Cities Amici Brief at 11-12. Specifically, Amici Cities note Appellees did not allege they will discharge a firearm within the City or its parks outside of an approved firing range; did not present facts about the prevalence of loss or theft of firearms in their own experience or in their communities; and did not state whether FOAC's minor member possesses a firearm the Minors Ordinance bans, whether the minor is accompanied by an adult, or whether the in-residence possession exception applies. Id. at 14-17.
Appellees request that we strike these Amici briefs because they raise the issue of the financial implications on local governments. Appellees’ Brief at 32-33. As discussed in note 11, infra , this issue is beyond the scope of our limited grant of allowance of appeal, and to the extent Amici discuss it, we will not consider it.
Regarding Mayor Papenfuse's public statements declaring his unwillingness to repeal the ordinances and his intent to continue enforcing them, the City argues those comments did not establish standing because they did not "indicate[ ] any immediate, concrete, intention to charge anyone, including these [Appellees], with violations of the Ordinances in question." Id. at 15-16. Thus, the City insists that Appellees’ complaint did not state an "immediate, non-hypothetical harm" that rose to the level of an actual controversy to satisfy the test for standing. Id. at 16.
As it does not view Appellees’ allegations as amounting to an "actual controversy," the City cautions that the Commonwealth Court's decision amounts to an impermissible advisory opinion. Id. The City explains that our refusal to sanction advisory opinions is consistent with our standing jurisprudence that requires a "real and concrete" controversy. Id. (quoting City of Phila. v. Commonwealth , 575 Pa. 542, 838 A.2d 566, 577 (2003) ). Further, the City asserts that advisory opinions are prohibited in declaratory judgment actions because the Declaratory Judgments Act " ‘requires a plaintiff to demonstrate an ‘actual controversy’ indicating imminent and inevitable litigation, and a direct, substantial and present interest.’ " Id. at 17 (quoting Cty. Comm'rs Ass'n of Pa. v. Dinges , 935 A.2d 926, 931 (Pa. Cmwlth. 2007) ). The City argues Appellees did not present an actual controversy and instead sought "pre-approval" of their intended conduct, which renders the Commonwealth Court's decision an erroneous advisory opinion. Id. at 17-18.
Moreover, the City contends the Commonwealth Court's decision in this case conflicts with this Court's decision in Robinson Township . Id. at 19. The City reads Robinson Township as a narrow ruling that "was limited to circumstances where an individual is presented with ‘unpalatable professional choices,’ between either abrogation of professional responsibility or violation of a statute." Id. at 20 (quoting Robinson Twp. , 83 A.3d at 924 ) (footnote omitted). Seizing on the "unpalatable professional choices" language in Robinson Township , the City argues this case is distinguishable because Appellees, as firearms owners, did not have a "professional or ethical obligation" to act in a manner that would violate the challenged ordinances. Id. at 21. Further, the City maintains Appellees have not demonstrated actual harm, in the form of prosecution or threatened prosecution, unlike the physician in Robinson Township who we found showed actual harm. Id. Accordingly, the City asks us to clarify that Robinson Township does not give Appellees standing, contrary to the Commonwealth Court's conclusion. Id.
Amici Cities and Local Government similarly interpret Robinson Township as limiting pre-enforcement actions to plaintiffs whose harm is related to its professional, legal, or ethical obligations. Local Government Amici Brief at 17; Cities Amici Brief at 7-8.
The City persists with its argument that the Commonwealth Court's decision will open the floodgates to litigation, diverting local government resources to defending their laws. City's Brief at 22-23. As this line of argument is outside the scope of our limited grant of allowance of appeal, we decline to consider it. Compare Pet. for Allowance of Appeal, 724 MAL 2019, at 20-21, with Firearm Owners Against Crime , 230 A.3d at 1012 ; see also Wilson Area Sch. Dist. v. Skepton , 586 Pa. 513, 895 A.2d 1250, 1255 n.3 (2006) (refusing to address issues beyond the scope of a limited grant of allowance of appeal).
Appellees respond that we should affirm the Commonwealth Court because the facts they pled, which we must credit as true when evaluating preliminary objections, establish their standing to bring a declaratory judgment action. Appellees’ Brief at 21. Appellees interpret the Declaratory Judgments Act as liberally granting standing to a plaintiff whose rights are affected by a law, ordinance, regulation, policy, or rule. Id. at 16 (citing 42 Pa.C.S. §§ 7532, 7541 ). Nonetheless, to obtain standing, Appellees acknowledge they must show they are aggrieved by demonstrating their interest is direct, substantial, and immediate. Id. However, Appellees maintain that a plaintiff may have standing to bring a challenge to an ordinance before the ordinance is enforced against that plaintiff. Id. at 17. Such a "pre-enforcement" action is particularly appropriate, in Appellees’ view, when no other adequate recourse exists. Id. at 18. Further, Appellees argue "[a] public threat of enforcement is enough to demonstrate ‘the ripening seeds of a controversy sufficient to support judicial review.’ " Id. at 17 (quoting Wecht v. Roddey , 815 A.2d 1146, 1150 (Pa. Cmwlth. 2002) ).
Applying the traditional standing test, Appellees maintain they showed they are aggrieved because their interests are direct, substantial, and immediate. Id. at 22. Appellees assert their interests are direct because the challenged ordinances harm their "lawful ownership, possession, transport, transfer, and use of firearms in the City." Id. Further, Appellees contend their interests are substantial because the City's position is that they must either comply with the ordinances, thereby forfeiting their legal firearms rights, or challenge the ordinances during a criminal prosecution for violating the ordinances. Id. Appellees insist their interests exceed "the common interest of all citizens in securing compliance with the law" because not every citizen of the City engages in lawful firearms activities, and thus, the ordinances do not affect the conduct of every citizen of the City. Id. at 23. Lastly, Appellees argue their interests are immediate because the ordinances prohibit Appellees from engaging in a number of activities, including discharging firearms, even in self-defense; possessing firearms as a minor; carrying or discharging firearms in City parks; and impose on Appellees a duty to report a firearm as lost or stolen within 48 hours. Id. at 23-24. Appellees contend "the harm is neither speculative nor remote simply because the Appellees have yet to face criminal prosecution." Id. at 24.
Amicus Curiae the Republican Caucus of the Pennsylvania House of Representatives contend Appellees have standing because they are adversely affected by the Hobson's choice they face, i.e. , they may comply with the challenged ordinances, foregoing their asserted constitutional rights, or willfully violate the law and risk criminal prosecution. Republican Caucus Amicus Brief at 6-7. The remainder of the Caucus's amicus brief addresses the substantive issue of state preemption of local firearms regulations, which is beyond the scope of this appeal.
Similarly, Amici Curiae ACLU of Pennsylvania and Community Legal Services, Inc. urge us to apply our prudential standing cases to permit Appellees to seek pre-enforcement review of the challenged ordinances in order to "avoid putting plaintiffs to the choice between foregoing what they believe to be their constitutional right and suffering enforcement under the challenged ordinances." ACLU Amici Brief at 14. They further contend that the factual development is sufficient to facilitate judicial review. Id. at 15.
Additionally, Appellees argue the Commonwealth Court did not issue an advisory opinion because they "are currently subject to restrictions and obligations imposed by the challenged ordinances and that harm is neither remote nor speculative." Id. at 25-26. Appellees posit that the Commonwealth Court's decision may have been advisory if the ordinances were proposed but not enacted; however, here, the City enacted the ordinances and was enforcing them. Id. at 26. Appellees disagree that they have to violate the ordinances to establish an "actual controversy" and note that the City provides no support for such a requirement. Id. Instead, Appellees maintain the Declaratory Judgments Act's purpose is to clarify legal rights and obligations without risking the consequences of violating the law. Id. at 27 (citing 42 Pa.C.S. § 7541(a) ). Appellees note this Court's position has been that " ‘pure questions of law’ like the constitutionality of the statutes underlying this matter ‘are particularly well-suited for pre-enforcement review.’ " Id. (quoting Yocum v. Commonwealth Pa. Gaming Control Bd. , 639 Pa. 521, 161 A.3d 228, 234 (2017) ). Appellees also suggest that "the factual development that would come from forcing Appellees to violate the ordinances ‘is not likely to shed more light upon the constitutional question of law.’ " Id. (quoting Robinson Twp. , 83 A.3d at 925 )).
Lastly, Appellees endorse the Commonwealth Court's decision to apply Robinson Township to this case. They note that the Robinson Township Court stated our " ‘jurisprudence permits pre-enforcement review of statutory provisions in cases in which petitioners must choose between equally unappealing options and where the third option, here refusing to provide medical services to a patient, is equally undesirable.’ " Id. at 28-29 (quoting Robinson Twp. , 83 A.3d at 924 ). Appellees disagree with the City's attempt to limit Robinson Township to situations involving an "unpalatable professional choice," noting that the Robinson Township Court reversed the Commonwealth Court's holding that the harm to the plaintiff-physician was too remote because he had not made the Hobson's choice before challenging the statute. Id. at 28 (citing Robinson Twp. , 83 A.3d at 923-925 ). Appellees maintain they "face equally unappealing options," like the physician in Robinson Township , and similarly have standing to challenge the City's ordinances. Id. at 29.
Appellees additionally ask us to reverse the Commonwealth Court and find they have taxpayer standing to challenge all of the ordinances, including the State of Emergency Ordinance. Appellees’ Brief at 30-32. However, Appellees did not appeal from the Commonwealth Court order affirming the trial court's decision to dismiss their challenge to the State of Emergency Ordinance because they did not have individual, associational, or taxpayer standing. See also City's Reply Brief at 10 (arguing Appellees waived their challenges to the State of Emergency Ordinance because they did not cross-appeal the Commonwealth Court's decision). Further, the issue of taxpayer standing is beyond the scope of our limited grant of allowance of appeal to consider Appellees’ individual and associational standing. Compare Firearm Owners Against Crime , 230 A.3d at 1012 (limiting issues to individual and associational standing) with Pittsburgh Palisades , 888 A.2d at 661 (explaining taxpayer standing is an exception to traditional standing). Accordingly, we do not consider the issue of taxpayer standing.
In its reply brief, the City maintains that Appellees lack standing because their claims based on a "fear of prosecution" are too speculative and do not give them a substantial, direct, and immediate interest. City's Reply Brief at 1. The City reiterates that Appellees have not alleged "that they have violated the ordinances or intend to do so, received a warning for doing so, or were fined or otherwise summoned to court." Id. The absence of these allegations, in the City's view, means Appellees did not demonstrate immediate harm from the challenged ordinances. Id. at 3. Using Appellee Stolfer as an example, the City maintains Appellees’ complaint does not show Stolfer is personally and directly impacted as it alleges only that Stolfer owns a gun and is subject to the ordinances but not that Stolfer intends to discharge a gun within the City, a park, or in any unlawful manner. Id. at 4. Further, the City disagrees that Mayor Papenfuse or Police Chief Carter's statements confer standing because they involve "general discussions of debates over the ordinances" and are over five years old. Id. at 5. Additionally, the City argues that all of Appellees’ claims are dependent on third parties’ exercise of discretion to enforce the ordinances, which renders the claims more speculative. Id.
The City also contends that a number of cases Appellees referenced in their brief support the City's position or are inapt. For instance, the City explains that in Bliss Excavating Co. v. Luzerne County , 418 Pa. 446, 211 A.2d 532 (1965), this Court dismissed the landowners’ challenge to the county's land use ordinances as "patently premature" and "an attempt to obtain an advisory opinion" because the county had neither charged any of the landowners nor threatened them with enforcement. Id. at 7 (quoting Bliss , 211 A.2d at 534 ). Similarly, the City notes that in Dillon v. City of Erie , 83 A.3d 467 (Pa. Cmwlth. 2013), the Commonwealth Court found the plaintiff lacked standing to challenge to a lost or stolen firearms ordinance because the plaintiff did not aver that he had lost his firearm or that the city would enforce the ordinance against him. Id. (citing Dillon , 83 A.3d at 474 ). Although the Dillon Court granted the plaintiff standing to challenge other ordinances because city officials had personally warned the plaintiff of enforcement, the City distinguishes Dillon from this case because the City did not personally warn Appellees of potential enforcement actions. Id. Further, the City maintains Appellees cited a number of cases that involved claims of actual or immediate harm, which are readily distinguishable from this case. Id. at 8-9, 9 n.5 (discussing Harris-Walsh v. Borough of Dickson City , 420 Pa. 259, 216 A.2d 329, 330-31 (1966) (deciding a court of equity had jurisdiction to decide validity of statute after the borough threatened plaintiff with criminal penalties); Firearm Owners Against Crime v. Lower Merion Twp. , 151 A.3d 1172, 1180 n.10 (Pa. Cmwlth. 2016) (containing dicta suggesting plaintiffs would have standing because the harm was not speculative); and Wecht , 815 A.2d at 1150 (involving an imminent violation of the Administrative Code and "inevitable" litigation)). Addressing Appellees’ reliance on Robinson Township , the City asserts "owning a firearm is not a profession , and Plaintiffs face no comparable dilemma here." Id. at 9. The City argues that Appellees did not present any authority for the proposition that they have standing merely because they are "subject to" the challenged ordinances. Id.
B. ANALYSIS
With the parties’ arguments in mind, we first set forth our general standing jurisprudence. Standing is a justiciability concern, implicating a court's ability to adjudicate a matter. See Robinson Twp. , 83 A.3d at 916 ; see also Town of McCandless v. McCandless Police Officers Ass'n , 587 Pa. 525, 901 A.2d 991, 1002 (2006) (explaining standing, ripeness, and mootness are related justiciability considerations that "are concerned with the proper timing of litigation."). Accordingly, a court must resolve justiciability concerns as a threshold matter before addressing the merits of the case. Robinson Twp. , 83 A.3d at 917. These justiciability doctrines ensure that courts do not issue inappropriate advisory opinions. See Stuckley v. Zoning Hearing Bd. of Newtown Twp. , 621 Pa. 509, 79 A.3d 510, 516 (2013).
The doctrine of standing "stems from the principle that judicial intervention is appropriate only where the underlying controversy is real and concrete, rather than abstract." City of Phila. , 838 A.2d at 577. The touchstone of standing is "protect[ing] against improper plaintiffs." In re Application of Biester , 487 Pa. 438, 409 A.2d 848, 851 (1979). To do so, courts require a plaintiff to demonstrate he or she has been "aggrieved" by the conduct he or she challenges. In re Hickson , 573 Pa. 127, 821 A.2d 1238, 1243 (2003). To determine whether the plaintiff has been aggrieved, Pennsylvania courts traditionally examine whether the plaintiff's interest in the outcome of the lawsuit is substantial, direct, and immediate. Robinson Twp. , 83 A.3d at 917. "A party's interest is substantial when it surpasses the interest of all citizens in procuring obedience to the law; it is direct when the asserted violation shares a causal connection with the alleged harm; finally, a party's interest is immediate when the causal connection with the alleged harm is neither remote nor speculative." Commonwealth, Office of Governor v. Donahue , 626 Pa. 437, 98 A.3d 1223, 1229 (2014).
Under Pennsylvania law, the doctrine of standing is "a prudential, judicially-created tool," affording discretion to courts. See Hickson , 821 A.2d at 1243 ; see also Robinson Twp. , 83 A.3d at 917 (standing "implicat[es] courts’ self-imposed limitations"). "In the federal system, by contrast, standing is both constitutional, implicating Article III's case or controversy requirement, and prudential, involving judicial limits on federal jurisdiction." Markham v. Wolf , 635 Pa. 288, 136 A.3d 134, 140 n.8 (2016).
Moreover, this Court has noted that the justiciability doctrines of standing and ripeness are closely related because both may encompass allegations that the plaintiff's harm is speculative or hypothetical and resolving the matter would constitute an advisory opinion. Robinson Twp. , 83 A.3d at 917 ; Rendell v. Pa. State Ethics Comm'n , 603 Pa. 292, 983 A.2d 708, 718 (2009). However, ripeness is distinct from standing as it addresses whether the factual development is sufficient to facilitate a judicial decision. Robinson Twp. , 83 A.3d at 917.
Pursuant to these principles, our task in this case is to first decide whether Appellees are the proper plaintiffs in this declaratory judgment action, i.e. , whether they have a substantial, direct, and immediate interest in the constitutionality and preemption of the challenged ordinances. See Donahue , 98 A.3d at 1229 (recognizing that "[i]n order to sustain an action under the Declaratory Judgments Act, a plaintiff must allege an interest which is direct, substantial and immediate, and must demonstrate the existence of a real or actual controversy, as the courts of this Commonwealth are generally proscribed from rendering decisions in the abstract or issuing purely advisory opinions."). In the Declaratory Judgments Act, 42 Pa.C.S. §§ 7531 - 7541, the General Assembly vested in courts the "power to declare rights, status, and other legal relations whether or not further relief is or could be claimed." 42 Pa.C.S. § 7532. Significantly, the legislature provided that the Declaratory Judgments Act is "remedial," and "its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and is to be liberally construed and administered." 42 Pa.C.S. § 7541(a).
Applying the traditional substantial-direct-immediate test for standing, this Court has afforded standing to plaintiffs in pre-enforcement declaratory judgment actions challenging the legality or constitutionality of statutes. In Cozen O'Connor , this Court held Cozen O'Connor had standing to bring a declaratory judgment action against the City of Philadelphia and the Philadelphia Board of Ethics to determine whether it could forgive the $448,469.09 debt of its client, a political campaign committee, without violating the Philadelphia Code's $10,000.00 per year contribution limitation. Cozen O'Connor , 13 A.3d at 465. Before Cozen filed its action, the Ethics Board issued an opinion pursuant to the campaign committee's request, concluding that the Code prohibited contributions received after an election to settle campaign debt in excess of the $10,000.00. Id. at 466. This led Cozen to file a declaratory judgment action contesting the Ethics Board's interpretation of the Code, claiming that it improperly restricted Cozen's ability to forgive the committee's debt. Id. The trial court and the Commonwealth Court agreed with the City and the Ethics Board that Cozen did not have standing because it did not have a substantial, direct, and immediate interest and, thus, was not aggrieved by the Ethics Board's decision. Id. at 466-67.
On appeal, this Court found that Cozen had pled that it was unable to forgive the committee's debt without violating the Ethics Board's interpretation of the Code, even though it did not expressly plead that it intended to forgive the committee's debt. Id. at 472. Based on Cozen's averment that it could not forgive the debt without violating the Code, we "conclude[d] that the Firm possesses standing in this regard in that it has a substantial, direct, and immediate interest in knowing whether it may, in its own right, forgive the total outstanding debt owed to it by the Committee without running afoul of the Code's campaign contribution limitations, as interpreted by the Ethics Board, and, thereby face significant fines and sanctions for such violations." Id. at 472. Accordingly, this Court concluded the Ethics Board's decision aggrieved Cozen, giving Cozen standing to challenge it in a pre-enforcement declaratory judgment action. Id.
Similarly, as discussed previously, this Court in Robinson Township reversed the Commonwealth Court's holding that a physician did not have standing to bring a pre-enforcement declaratory judgment action challenging a portion of Act 13 restricting his ability to obtain and share information with other physicians about chemicals used in fracking unless he violated or intended to violate the statute. Robinson Twp. , 83 A.3d at 923. Because the statute placed the physician in the "untenable and objectionable" position of choosing between violating the statute, violating his legal and ethical obligations to his patient, or refusing to treat a patient, we concluded the physician's interest was substantial and direct, giving him standing to pursue pre-enforcement review. Id. at 924 (explaining "[o]ur existing jurisprudence permits pre-enforcement review of statutory provisions in cases in which petitioners must choose between equally unappealing options and where the third option, here refusing to provide medical services to a patient, is equally undesirable."). Further, we rejected the Commonwealth Court's analysis that the physician did not have standing unless he violated or intended to violate the statute by noting "[a]dditional factual development that would result from awaiting an actual request for information on behalf of a patient is not likely to shed more light upon the constitutional question of law presented by what is essentially a facial challenge to [the statute]." Id. at 925.
In addition to the physician, the Robinson Township Court concluded two other entities had standing to challenge other aspects of Act 13: several municipalities and the Delaware Riverkeeper Network. Id. at 920-23. The Commonwealth Court below did not discuss these aspects of the Robinson Township decision. Robinson Township affirmed the Commonwealth Court's conclusion that a number of municipalities had standing to challenge Act 13 and their claims were ripe because, as the Commonwealth Court noted, "the townships would ‘be forced to submit to the regulations [that required modification of their zoning codes] and incur cost[s] and burden[s] that the regulations would impose or be forced to defend themselves against sanctions for non-compliance with the law.’ " Id. at 919 (alterations in original) (quoting Robinson Twp. v. Commonwealth , 52 A.3d 463, 479 n.17 (Pa. Cmwlth. 2012) ). Moreover, the Robinson Township Court held the municipalities had standing because Act 13 implicated their constitutional duties and governmental functions such that their interests were substantial, direct, and immediate. Id. at 920.
Additionally, the Robinson Township Court found the Delaware Riverkeeper Network had associational standing to challenge Act 13's constitutionality. The Court reasoned that the association's individual members "have a substantial and direct interest in the outcome of the litigation premised upon the serious risk of alteration in the physical nature of their respective political subdivisions and the components of their surrounding environment." Id. at 922. As the association's individual members had standing, this Court explained this gave the association standing because "an association has standing as representative of its members to bring a cause of action even in the absence of injury to itself, if the association alleges that at least one of its members is suffering immediate or threatened injury as a result of the action challenged." 922. Accordingly, the Robinson Township Court found the physician, numerous municipalities, and an association had standing to challenge Act 13 in a pre-enforcement declaratory judgment action.
Likewise, in Donahue , this Court concluded the Office of the Governor had standing to bring a declaratory judgment action to challenge the Office of Open Records’ interpretation of the Right-to-Know Law's timeframe for responding to written requests for documents. Donahue , 98 A.3d at 1225. The requester submitted a written request on March 7, 2012, which the Office of the Governor's open-records officer did not receive until March 12, 2012. Id. at 1226. Five business days later, on March 19, 2012, the officer granted the request in part and denied it in part. Id. The requester appealed to the Office of Open Records (OOR), and the OOR decided the request was deemed denied because the Office of the Governor did not timely respond within five business days of receiving the request, regardless of the five-day delay that occurred between the receipt of the request on March 7 and the transmission of the request to the open-records officer on March 12. Id. ; see also 65 P.S. § 67.901 ("If the agency fails to send the response within five business days of receipt of the written request for access, the written request for access shall be deemed denied."). Nonetheless, the OOR upheld the Office of the Governor's substantive response. Donahue , 98 A.3d at 1226.
The Office of the Governor then appealed the OOR's order to the Commonwealth Court, disputing the OOR's interpretation of the Right-to-Know Law's response period. Id. The Office of the Governor's position was that an agency's five-day response period begins to run only when the agency's open-records officer receives the request, and not any sooner if any other agency employee receives the request. Id. ; see also 65 P.S. § 67.901 ("The time for response shall not exceed five business days from the date the written request is received by the open-records officer for an agency."). The Commonwealth Court quashed the appeal, holding that the Office of the Governor did not have standing because it was not aggrieved by the OOR's order. Donahue , 98 A.3d at 1226.
The Office of the Governor had also simultaneously filed a declaratory judgment action in the Commonwealth Court's original jurisdiction, seeking to clarify when the five-day response period began to run. Id. at 1226. The OOR filed preliminary objections, arguing the Office of the Governor did not have standing because it was not aggrieved in the underlying Donohue matter and lacked standing to litigate the same issue in a new declaratory judgment action. Id. at 1227. The Commonwealth Court, in a single-judge order, dismissed the OOR's preliminary objections to standing, and a three-judge panel agreed with the Office of the Governor's substantive interpretation of the law and thus granted declaratory relief. Id. at 1227-28.
On appeal, this Court held that the Office of the Governor had standing to bring a declaratory judgment action challenging the OOR's interpretation of the commencement of the response period. Id. at 1230. Rejecting the OOR's argument that its interpretation of the response period did not harm the Office of the Governor's interests, this Court reasoned that the effect of the OOR's interpretation imposed a shortened response time that increased the likelihood of deemed denials, and, in turn, increased the amount of RTKL cases the Office of the Governor would have to adjudicate with the OOR. Id. (citing 65 P.S. § 67.1101 (providing a requester may appeal a deemed denial to the OOR)). Based on this, we concluded "[the Office of the Governor's] allegation of harm is neither remote nor speculative, and as an administrative agency of the Commonwealth charged with complying with the statutory directives of the RTKL, [the Office of the Governor] possesses a cognizable interest in the outcome of this dispute that surpasses the interest of all citizens." Id. Moreover, we rejected the OOR's position that the Office of the Governor was not aggrieved because the OOR had not engaged in official rulemaking. Id. Although this Court recognized the Donahue discussion of the response timeframe was "essentially dicta," we concluded that "OOR's initial adjudication in this matter and subsequent advocacy [indicating it intends to enforce its Donahue interpretation of the response period] serves to enunciate sufficiently its position on this issue which adversely, directly and immediately impacts OG." Id. This Court also noted that the foregoing analysis was consistent with our precedent granting standing to plaintiffs in declaratory judgment actions raising pre-enforcement challenges to an administrative agency's interpretation and enforcement of a statute. Id. (citing Arsenal Coal , 477 A.3d at 1333; Bayada Nurses, Inc. v. Commonwealth , 607 Pa. 527, 8 A.3d 866 (2010) ).
Most recently, in Yocum , this Court held an attorney employed by the Pennsylvania Gaming Control Board had standing to bring an action for declaratory and injunctive relief challenging the constitutionality of restrictions the Pennsylvania Race Horse Development and Gaming Act (Gaming Act), 4 Pa.C.S. §§ 1101 - 1904, imposed on the Board's employees. Yocum , 161 A.3d at 231. Claiming that she wanted "to seek and accept new employment as an attorney representing gaming clients," which would potentially violate the Gaming Act's employment restrictions in Section 1208(h), the attorney sought a declaratory judgment that Section 1208(h) was an unconstitutional restriction on the practice of law. Id. at 232-33 ; see also Pa. Const. Art. V, § 10 (granting the Supreme Court the exclusive authority to regulate the practice of law). The attorney elaborated that the Gaming Act imposed on her two equally unappealing options: either violate the Gaming Act in order to contest the Act's constitutionality, which would put at risk her ability to continue practicing law and put her affiliates in jeopardy of administrative penalty; or refrain from practicing law in the area of her expertise in order to comply with the Gaming Act. Yocum , 161 A.3d at 233. The Board filed preliminary objections, arguing, in part, she did not have standing because the Board still employed her and she had not been aggrieved by the Gaming Act's employment restrictions and, relatedly, her claims were not ripe because enforcement of the employment restrictions was hypothetical and speculative. Id.
This Court concluded she had standing to challenge the constitutionality of the Gaming Act's employment restrictions because the attorney would violate the Gaming Act by attempting to obtain new employment in the gaming industry, which would expose her and her potential employer to adverse consequences. Id. at 237. Moreover, we concluded the attorney's claim was ripe because she presented a constitutional question of law and "additional factual development of petitioner's claims that might result from awaiting her actual application to or recruitment by a possible future gaming industry employer ‘is not likely to shed more light upon the constitutional question of law’ she has presented[..., which was] ‘particularly well-suited for pre-enforcement review.’ " Id. (quoting Robinson Twp. , 83 A.3d at 917, 925 ).
This Court has also permitted plaintiffs to seek pre-enforcement relief when a law imposed unappealing options in cases that were not brought under the Declaratory Judgments Act. In Arsenal Coal , this Court held that the petitioners’ petition for pre-enforcement injunctive relief from the Department of Environmental Resources’ regulatory scheme presented a justiciable claim. Arsenal Coal , 477 A.2d at 1338, 1340. In reversing the Commonwealth Court's decision that equitable relief was unavailable because the statutory administrative review provisions provided an adequate remedy, the Arsenal Coal Court concluded that the regulations had a direct and immediate impact on the petitioners, creating an exception to the general rule of exhaustion of administrative remedies. Id. at 1340. This Court further explained that if petitioners were unable to obtain pre-enforcement review, their alternative options were to refuse to comply with the regulations to test them, risking sanctions and the uncertainty of piecemeal litigation, or to comply with the regulations, which would be expensive. Id. In light of the inadequacy of these alternatives and the direct and immediate impact on the petitioners, this Court concluded the petitioners were entitled to pre-enforcement review. Id.
In Shaulis , this Court held that an attorney, previously employed by the Department of Revenue, had standing to bring a constitutional challenge to a provision of the Public Official and Employee Ethics Act that the State Ethics Commission had determined prevented her, as a former government employee, from engaging in certain aspects of private practice that would involve the Department. Shaulis , 833 A.2d at 125, 127, abrogated in part by Yocum , 161 A.3d at 237. This Court found that the Ethics Act gave statutory standing to a person aggrieved by a final opinion of the Commission. Id. at 129. The Shaulis Court reasoned that the attorney was aggrieved because the choice that resulted from the Commission's opinion was either to accept the Commission's opinion and forego aspects of her legal practice or violate the Commission's interpretation of the Ethics Act and risk the consequences in order to challenge it in court. Id. at 130. Accordingly, this Court held she was aggrieved for the purposes of the Ethics Act because she had a direct interest in the opinion and had standing under the Ethics Act to bring a pre-enforcement challenge to the Commission's opinion. Id.
This line of cases – Cozen O'Connor , Robinson Township , Donahue , and Yocum – departed from this Court's earlier decision in Pittsburgh Palisades in which we sustained preliminary objections to standing in a pre-enforcement declaratory judgment action because the petitioners’ claims were "wholly contingent on future events." Pittsburgh Palisades , 888 A.2d at 660. In Pittsburgh Palisades , this Court concluded the petitioners, Pittsburgh Palisades Park, LLC and Charles J. Betters, did not have standing to bring a declaratory judgment action challenging the constitutionality of the Pennsylvania Race Horse Development and Gaming Act. Id. at 657. The petitioners’ claim was based on their averments that they had acquired property in Pittsburgh on which they planned to develop a gaming facility and intended to apply for a gaming license once the Pennsylvania Gaming Control Board established the application process. Id. The petitioners asserted that Section 1209 of the Gaming Act, which provided for a refund of slot machine license fees if the Board changed in certain ways, prohibited the General Assembly from altering certain provisions of the Gaming Act in violation of Article II, Section 1 of the Pennsylvania Constitution, which vests exclusive legislative power in the General Assembly. Id. at 658. Based on this, the petitioners sought to invalidate the Gaming Act and preclude the Board from issuing licenses. Id.
Acting in our original jurisdiction, this Court sustained the respondents’ preliminary objections to the petitioners’ standing. This Court reasoned that the petitioners’ harm was not substantial because they failed to demonstrate an interest in the constitutionality of Section 1209 "that is greater than that of any other citizen." Id. at 660. Further, we found their interest was not direct because "not only do [the petitioners] themselves strongly suggest that Section 1209 would only work to their benefit in terms of a refund if the Board was changed, but also at this juncture they have not been issued a gaming license and there have been no allegations that legislators have been ‘handcuffed’ by the prospect of returning gaming fees." Id. Because the harm to the petitioners was "wholly contingent on future events," we concluded their interest was not immediate. Id. As the petitioners did not demonstrate a direct, substantial, or immediate interest, we held they did not have standing. Id. at 660-61.
In dissent, Justice Saylor commented on the "widening tension" between the Declaratory Judgments Act, which courts are directed to liberally apply to resolve uncertainty regarding rights, and a strict application of the traditional standing requirements of a substantial, direct, and immediate interest. Id. at 663 (Saylor, J., dissenting). Justice Saylor advocated a relaxed immediacy requirement in declaratory judgment cases. Id. (relying on Petition of Kariher , 284 Pa. 455, 131 A. 265, 268 (1925) ). Accordingly, he proposed directing the Commonwealth Court to conduct an evidentiary hearing, and ultimately grant standing if the petitioners showed a likelihood of both meeting the criteria for a gaming license and filing an application for a license. Id.
Guided by Cozen O'Connor , Robinson Township , Donahue , and Yocum , we conclude the averments in Appellees’ complaint are sufficient to establish their standing to bring a declaratory judgment action challenging the constitutionality and statutory preemption of the City's Discharge, Parks, Lost/Stolen, and Minors Ordinances. The complaint alleges that First, Bullock, and Stolfer lawfully possess firearms, are licensed to carry a concealed firearm, and fear criminal prosecution under the ordinances as they live, commute, and travel to the City. Complaint, 1/16/15, at ¶¶ 66, 68, 69, 71, 72, 74, 77, 79, 80, 85. Additionally, one of FOAC's members is under the age of 18, resides in the City, and lawfully possesses firearms. Id. at ¶ 60. Further, the City is actively enforcing the ordinances, citing violators of the Discharge and Minors Ordinances, and the City's mayor indicated his intent to continue to enforce the ordinances. Id. at Ex. B; Ex. C.
Given these allegations, which we take as true, Appellees currently must make a choice to either comply with the ordinances, thereby forfeiting what they view as their constitutionally and statutorily protected firearms rights; or violate the ordinances by exercising their rights, thereby risking criminal prosecution. Appellees also have a third option, which is to stop living in, commuting to, or travelling to the City to avoid being subject to its ordinances, which would of course entail relocating from the City, changing employers, or foregoing legislative advocacy. That Appellees are confronted with these options shows that their interest in the outcome of the constitutionality and preemption of the challenged ordinances is substantial, immediate, and direct. Accord Yocum , 161 A.3d at 237 ; Robinson Twp. , 83 A.3d at 924-25 ; Cozen O'Connor , 13 A.3d at 472. The individual Appellees’ interest is substantial because they, as lawful possessors of firearms and concealed carry licenses, seek a determination of the validity of the City's Discharge, Parks, and Lost/Stolen Ordinances, which criminalize aspects of their ability to carry and use firearms within the City and impose reporting obligations for lost or stolen firearms. This exceeds the "abstract interest of all citizens in having others comply with the law." William Penn Parking Garage, Inc. v. City of Pittsburgh , 464 Pa. 168, 346 A.2d 269, 282 (1975) (defining substantial interest). Their interest is direct because the challenged ordinances allegedly infringe on their constitutional and statutory rights to possess, carry, and use firearms within the City. See id. (stating a direct interest "simply means that the person claiming to be aggrieved must show causation of the harm to his [or her] interest by the matter of which he [or she] complains."). Their interest is immediate because they are currently subject to the challenged ordinances, which the City is actively enforcing, and must presently decide whether to violate the ordinances, forfeit their rights to comply with the ordinances, or avoid the City altogether. This alleged harm to their interest is not remote or speculative. See Donahue , 98 A.3d at 1229. Because the individual Appellees, who are all members of FOAC, have standing to challenge the Discharge, Parks, and Lost/Stolen Ordinances, FOAC has standing as an associational representative of these members to challenge the ordinances. See Robinson Twp. , 83 A.3d at 922. For the same reasons, FOAC's member who is a minor and resides in the City has a substantial, direct, and immediate interest in the outcome of this matter, and FOAC also has standing as this minor's associational representative to challenge the Minor's Ordinance. See id. Accordingly, Appellees have a substantial, direct, and immediate interest in the outcome of their challenge to the ordinances and have standing to pursue a declaratory judgment action to ascertain their rights and obligations.
Based on the above, the City's argument that Appellees do not have a substantial interest because it is the same as anyone who is present in the City is unpersuasive. On the contrary, Appellees’ interest is greater than citizens who do not own or possess firearms within the City. Appellees’ conduct is currently regulated by the challenged ordinances, and their interest in the outcome of this action clearly surpasses that of every other citizen. See Donahue , 98 A.3d at 1229 (concluding the Office of the Governor's interest surpassed the interest of all citizens because it had to comply with the RTKL response time). Additionally, we reject the City's position that Appellees do not have an immediate interest. Similar to the Office of the Governor in Donahue , whose interest was immediate because of the effect of the OOR's interpretation on its RTKL response obligations, Appellees have an immediate interest because of the effect of the challenged ordinances on their exercise of their firearms rights. See id. Appellees’ interest in this matter is immediate because the resolution of the underlying constitutional and statutory challenges will impact whether they must comply with the ordinances. Just as the Office of the Governor's allegation of harm was not remote or speculative in Donahue , neither is Appellees’ allegation of harm in this case. See id.
We also reject the City's contention that Appellees’ harm is hypothetical and not immediate because they did not aver that they have been arrested, threatened with citation, or that they changed their behavior to comply with the ordinances, and the mayor's statements did not threaten any specific individuals with citation. First, our jurisprudence in pre-enforcement declaratory judgment cases, as discussed above, has developed to give standing to plaintiffs to challenge laws before the laws have been enforced against them and before enforcement has been threatened. See Yocum , 161 A.3d at 237 ; Donahue , 98 A.3d at 1230-31 ; Robinson Twp. , 83 A.3d at 920, 922-25 ; Cozen O'Connor , 13 A.3d at 471-72. Second, as Appellees contest the facial validity of the ordinances, "[a]dditional factual development that would result from awaiting an actual [criminal prosecution] is not likely to shed more light upon the constitutional question of law presented[.]" Robinson Twp. , 83 A.3d at 925 ; accord Yocum , 161 A.3d at 237. From the facts Appellees pled in their complaint, we can reasonably infer that they seek to conduct various activities with firearms within the City, which subjects them to potential enforcement actions. See Commonwealth by Shapiro v. Golden Gate Nat'l Senior Care LLC , 648 Pa. 604, 194 A.3d 1010, 1022 (2019) (stating a court reviewing a ruling on preliminary objections accepts as true all reasonable inferences from the material facts averred in the complaint). Third, the mayor's and police chief's statements indicate that they are enforcing the ordinances, intend to continue to do so, and will not repeal the ordinances. That is sufficient to define the City's officials’ position on the ordinances and shows the substantial, direct, and immediate risk of criminal prosecution to Appellees if they do not comply with the ordinances. Cf. Donahue , 98 A.3d at 1229 (concluding "OOR's initial adjudication in this matter and subsequent advocacy serves to enunciate sufficiently its position on this issue which adversely, directly and immediately impacts [the Office of the Governor]."). It is not necessary for the mayor or police chief to specifically threaten any individual with enforcement as Appellees’ interests are immediate without that factual development, and it would not assist the legal inquiry into the validity of the ordinances. See Robinson Twp. , 83 A.3d at 925.
Although we recognize that the City's line of arguments raises classic ripeness concerns in the form of the lack of factual development, and ripeness is generally waived if the parties do not raise it, see Rendell , 983 A.2d at 718, we decline to find the claims waived because of the inherent interrelatedness of standing and ripeness. See Robinson Twp. , 83 A.3d at 917. Accordingly, we address the City's arguments as implicating the immediacy of Appellees’ interest for standing purposes.
Moreover, our decision in this matter is consistent with Cozen O'Connor , Robinson Township , and Yocum . As outlined above, the challenged ordinances put Appellees in the position that this Court has held is "particularly well-suited for pre-enforcement review" in a declaratory judgment action. Robinson Twp. , 83 A.3d at 917, 924. Similar to the municipalities in Robinson Township , which alleged Act 13 interfered with their constitutional duties regarding the environment, Appellees assert the City's ordinances impair their constitutional rights to possess and use firearms and their statutory rights to be free from municipal firearms regulations. See Robinson Twp. , 83 A.3d at 920. Further, like the physician in Robinson Township , who had to choose between violating Act 13, violating his legal and ethical obligations in treating patients, or refusing a patient medical care, Appellees here must choose whether to violate the challenged ordinances, surrender their constitutional and statutory rights, or avoid the City. See id. at 924. As the Robinson Township Court stated, "[o]ur existing jurisprudence permits pre-enforcement review of statutory provisions in cases in which petitioners must choose between" relinquishing their rights to comply with a law or willfully violating the law. See id. Further, like the law firm in Cozen O'Connor that was unable to forgive its client's debt unless it violated the Ethics Board's interpretation of campaign contribution limitations, Appellees here cannot exercise their firearms rights without potentially violating the City's ordinances. See Cozen O'Connor , 13 A.3d at 472. Just as the law firm had a substantial, direct, and immediate interest in obtaining a declaratory judgment as to its right to forgive the debt without violating the law, Appellees in this case have a substantial, direct, and immediate interest in knowing whether they will face potential criminal prosecution in possessing or using firearms in the City or not reporting their firearms lost or stolen. See id. Moreover, comparable to the attorney in Yocum , who had standing to challenge the Gaming Act's employment restrictions because she was compelled to either violate the Act, forgo obtaining new employment in the gaming industry, or search for employment outside of her area of expertise, Appellees have standing to challenge the City's ordinances based on the position in which the ordinances place them. See Yocum , 161 A.3d at 237. In these cases, this Court concluded plaintiffs have standing to challenge laws via declaratory judgment actions when they are confronted with a choice between complying with the law or forfeiting their claimed rights, even though they do not face an enforcement action or the threat of one.
Robinson Township contained shorthand language to describe the circumstance where a law forces a plaintiff to make a choice between complying with a law, which would violate other obligations, or violating the law. See Robinson Twp. , 83 A.3d at 924 (characterizing the physician's situation as "untenable," "objectionable," "unappealing," and "undesirable"). We clarify that Appellees have standing because the challenged ordinances place them in the position of choosing to violate the ordinances by exercising their perceived constitutional and statutory rights or to comply with the City's laws and forfeit those asserted rights.
We reject the City's suggestion that these cases must be read as narrowly applying to choices that arise only in the occupational or industry context. It is true that this line of pre-enforcement declaratory judgment cases have arisen in that context, as the law in Robinson Township regulated the physician's professional obligations, the law in Yocum restricted the attorney's employment opportunities, and the law in Cozen O'Connor affected the firm's ability to forgive debt. Here, that is not the context as the challenged ordinances regulate constitutionally and statutorily protected individual rights. However, the City offers no workable limiting principle, and we cannot discern any reason to limit standing in pre-enforcement declaratory judgments to those areas as long as the plaintiff demonstrates it is aggrieved in that its interest is substantial, direct, and immediate.
There is no basis to constrain the power granted by the Declaratory Judgments Act. The Declaratory Judgments Act gives courts the "power to declare rights, status, and other legal relations whether or not further relief is or could be claimed." 42 Pa.C.S. § 7532. The Act refers to the "rights, status, and other legal relations" without qualification and does not limit it to the occupational or business arena. Id. The Declaratory Judgments Act provides an avenue of relief for a plaintiff to determine its rights when a law forces upon the plaintiff a number of choices, including surrendering perceived rights to comply with the law. That is the case here as Appellees must choose to comply with the ordinances and forfeit their firearms rights, to violate the ordinances and risk criminal prosecution, or to avoid being present in the City. Therefore, Appellees are aggrieved by the ordinances and are the proper plaintiffs to pursue this declaratory judgment action. For the foregoing reasons, we conclude Appellees have individual and associational standing to seek declaratory relief from the Discharge, Parks, Lost/Stolen, and Minors Ordinances. Accordingly, we affirm the order of the Commonwealth Court. Jurisdiction relinquished.
Justices Saylor, Dougherty and Wecht join the opinion.
Justice Wecht files a concurring opinion.
Chief Justice Baer files a dissenting opinion in which Justices Todd and Donohue join.
Justice Donohue files a dissenting opinion in which Chief Justice Baer and Justice Todd join.
CONCURRING OPINION
JUSTICE WECHT
Like many municipalities, Harrisburg has attempted to protect the health, safety, and welfare of its citizens by attempting to regulate the discharge and possession of firearms within municipal limits. As the Majority aptly relates, individual gun owners and an association that represents them ("Appellees") brought a declaratory judgment action to invalidate these ordinances on constitutional and statutory grounds. Without reaching the merits, the trial court found that Appellees lack standing, and dismissed the complaint. The Commonwealth Court reversed, holding that Appellees demonstrated standing to challenge the ordinances, a decision the Majority affirms.
See U.S. CONST. amend. II ; PA. CONST. art. I, § 21 ; 18 Pa.C.S. §§ 6101 -6128.
Appellees aver that they "own, possess, use and bear firearms for all lawful purposes, including, but not limited to, self-defense, hunting, firearms training/education, and target shooting." See Appellees’ Complaint, 1/16/2015, at 18. Appellees do not, however, assert that they currently engage in the specific conduct prohibited by the challenged ordinances or that they have a present intent to do so.
42 Pa.C.S. §§ 7531 -7541.
I agree with the Majority that Appellees have established standing, and I join the Majority Opinion in full. Standing is a prudential requirement that has evolved in this Commonwealth with enough flexibility to account for pre-enforcement review of government enactments. We do not require citizens to become lawbreakers in order to bring such challenges, nor do we require citizens quietly to abdicate their individual rights and submit to legislation that they believe violates those rights. This is true whenever government enactments force the choice between forfeiting one's rights or complying with the law. It is as true for the right to bear arms as it is for other constitutional rights. And it is as true even when this choice does not implicate professional or pecuniary interests.
To obtain judicial resolution of a controversy, a party must first establish standing to maintain the action. Bergdoll v. Kane , 557 Pa. 72, 731 A.2d 1261, 1268 (1999). Standing depends upon whether the party is aggrieved. William Penn Parking Garage, Inc. v. Pittsburgh , 464 Pa. 168, 346 A.2d 269, 281 (1975). One who is not adversely affected by the measure that he or she seeks to challenge is not aggrieved and, therefore, has no standing to obtain judicial resolution of the challenge. Id. "[I]t is not sufficient for the person claiming to be ‘aggrieved’ to assert the common interest of all citizens in procuring obedience to the law." Id . As the Majority recognizes, the established formulation to determine that an individual is aggrieved requires a "substantial, direct, and immediate" interest in the claim sought to be litigated. Maj. Op. at 481–82; accord Bergdoll , 731 A.2d at 1268.
A "substantial" interest is an interest in the outcome of the litigation which surpasses the common interest of all citizens in procuring obedience to the law. A "direct" interest requires a showing that the matter complained of caused harm to the party's interest. An "immediate" interest involves the nature of the causal connection between the action
complained of and the injury to the party challenging it.
S. Whitehall Twp. Police Serv. v. S. Whitehall Twp. , 521 Pa. 82, 555 A.2d 793, 795 (1989) (citations omitted).
Application of the traditional standing formula to sundry circumstances has refined the Commonwealth's standing jurisprudence over time. At its core, standing is a flexible construct that enables judicial redress when the government has engaged in conduct or enacted laws that infringe the rights held by the citizenry. As we explained in Commonwealth, Office of Governor v. Donahue , 626 Pa. 437, 98 A.3d 1223, 1229 (2014), "the doctrine of standing ... is a prudential, judicially-created principle designed to winnow out litigants who have no direct interest in a judicial matter." Our notions of standing provide access to the justice system to challenge the validity of government actions, implementing the promise that "[a]ll courts shall be open; and every man for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay." PA. CONST. art. I, § 11.
The question of standing in this case arises in the context of a pre-enforcement action under the Declaratory Judgments Act ("Act"), the purpose of which "is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations." 42 Pa.C.S. § 7541(a). To this end, the Act "is to be liberally construed and administered." Id . The Act expands access to judicial redress of controversies, as the plaintiff does not have to establish that "an actual wrong" has been done or is "immediately threatened." Petition of Kariher , 284 Pa. 455, 131 A. 265, 268 (1925). Rather, to sustain an action under the Act, the plaintiff must "demonstrate an ‘actual controversy’ indicating imminent and inevitable litigation, and a direct, substantial and present interest." Unified Sportsmen of Pa. v. Pa. Game Comm'n , 950 A.2d 1120, 1132 (Pa. Cmwlth. 2008) (quoting Wagner v. Apollo Gas Co. , 399 Pa.Super. 323, 582 A.2d 364, 366 (1990) ); see also Petition of Cap. Bank & Tr. Co. , 336 Pa. 108, 6 A.2d 790, 792 (1939) ("the vital factor in the assumption of jurisdiction [under the Act] is the presence of antagonistic claims indicating imminent and inevitable litigation, coupled with a clear manifestation that the declaration sought will be a practical help in ending the controversy").
The Act expands the understanding of harm beyond that which has actually occurred to include also that which is inevitable or imminent. The Act is well-suited to a pre-enforcement action, as it was designed to provide relief from uncertainty and insecurity with respect to rights and legal relations as a mechanism to challenge the legality of government enactments without requiring the plaintiff to await enforcement and subject herself to criminal sanction. See 42 Pa.C.S. § 7541(a).
In the past, we described the circumstances necessary to confer standing under the Act as an "actual controversy, or the ripening seeds of one," between the parties. In re Cryan's Est. , 301 Pa. 386, 152 A. 675, 678-79 (1930) ; In re Sterrett's Est. , 300 Pa. 116, 150 A. 159, 161 (1930) ; In re Pittsburgh's Consol. City Charter , 297 Pa. 502, 147 A. 525, 526 (1929) ; Reese v. Adamson , 297 Pa. 13, 146 A. 262, 263 (1929) ; Lyman v. Lyman , 293 Pa. 490, 143 A. 200, 201 (1928) ; Kariher , 131 A. at 271. "Ripening seeds" means "a state of fact indicating ‘imminent’ and ‘inevitable’ litigation." Cryan's Est. , 152 A. at 679. We have explained the difference between an actual controversy and inevitable litigation as follows:
If differences between the parties concerned, as to their legal rights, have reached the stage of antagonistic claims, which are being actively pressed on one side and opposed on the other, an actual controversy appears; where, however, the claims of the several parties in interest, while not having reached that active stage, are nevertheless present, and indicative of threatened litigation in the immediate future, which seems unavoidable, the ripening seeds of a controversy appear.
Id .
Act 192 of 2014 amended Section 6120 of the Uniform Firearms Act ("Limitation on the regulation of firearms and ammunition"), which sets forth in subsection (a) the general rule that "[n]o county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth." 18 Pa.C.S. § 6120. Act 192 added to Section 6120 an automatic standing provision stating that "[a] person adversely affected by an ordinance ... prohibited under subsection (a) ... may seek declaratory or injunctive relief and actual damages in an appropriate court." 18 Pa.C.S. § 6120(a.2) (declared unconstitutional). Act 192 further provided the following definition:
"Person adversely affected." Any of the following:
(1) A resident of this Commonwealth who may legally possess a firearm under Federal and State law.
(2) A person who otherwise has standing under the laws of this Commonwealth to bring an action under subsection (a.2).
(3) A membership organization, in which a member is a person described under paragraph (1) or (2).
18 Pa.C.S. § 6120(b) (declared unconstitutional).
City of Harrisburg Code § 3-345.1 (prohibiting unaccompanied minors from possessing firearms outside of their residences); Id . § 3-345.2 (prohibiting discharge of weapons in Harrisburg); Id. § 3-345.4 (requiring reporting of lost and stolen firearms); Id. § 10-301.13 (prohibiting firearms and weapons in parks).
As Justice Saylor has insightfully observed, there is "tension between" liberal application of the Act and "stringent application of traditional standing criteria" requiring the plaintiff to demonstrate a direct, substantial, and present interest in the outcome of the litigation. Pittsburgh Palisades Park, LLC v. Commonwealth , 585 Pa. 196, 888 A.2d 655, 663 (2005) (Saylor, J., dissenting). Notwithstanding this apparent tension, we have held that the availability of declaratory relief under the Act is limited by justiciability concerns: In order to bring an action under the Act, "a plaintiff must allege an interest which is direct, substantial and immediate, and must demonstrate the existence of a real or actual controversy, as the courts of this Commonwealth are generally proscribed from rendering decisions in the abstract or issuing purely advisory opinions." Donahue , 98 A.3d at 1229 ; see also Maj. Op. at 482 (observing that the Court applies the traditional "substantial-direct-immediate test for standing" in pre-enforcement declaratory judgment actions); Robinson Twp. v. Commonwealth , 623 Pa. 564, 83 A.3d 901, 917-25 (2013) (applying the traditional standing requirements to a pre-enforcement declaratory judgment); Cozen O'Connor v. City of Phila. Bd. of Ethics , 608 Pa. 570, 13 A.3d 464, 468-72 (2011) (same); Upper Bucks Cnty. Vocational-Tech. Sch. Educ. Ass'n v. Upper Bucks Cnty. Vocational-Tech. Sch. Joint Comm. , 504 Pa. 418, 474 A.2d 1120, 1122 (1984) (same).
As the Majority observes, pre-enforcement actions brought outside of the Act must also conform to the traditional requirements of standing. Maj. Op. at 486 n.14; Shaulis v. Pa. State Ethics Comm'n , 574 Pa. 680, 833 A.2d 123 (2003) ; Arsenal Coal Co. v. Commonwealth, 505 Pa. 198, 477 A.2d 1333 (1984).
Accordingly, in connection with the four challenged ordinances at issue in this appeal, Appellees asserted at least ten times in their complaint that "[p]ursuant to Section 6120(a.2), an actual controversy need not exist, as the General Assembly has conferred standing where a municipality either promulgates or enforces ‘an ordinance, resolution, regulation, rule, practice or any other action.’ " Appellees’ Complaint, 1/16/2015, at 21 n.3, 26 n.7, 32 n.9, 37 n.11, 40 n.12, 44 n.13, 50 n.15, 54 n.17, 74 n.22, 78 n.23. Nonetheless, Appellees alleged in their complaint that a controversy did exist, not because they engaged in conduct prohibited by the ordinances or had a present intent to do so, but because City officials had publicly stated that they intended to enforce the ordinances and had prosecuted individuals pursuant to the ordinances. See id. at 21, 26, 32, 37, 40, 44, 50, 54, 74, and 78.
Act 192 of Nov. 6, 2014, P.L. 2921.
In pre-enforcement cases, standing is premised upon the real and intolerable dilemma that plaintiffs confront: on the one hand, abdicating or forfeiting their individual rights, or, on the other, exercising these rights and suffering the might of government. In such scenarios, there is an alternative, a path to the courthouse that permits these plaintiffs to seek judicial review of challenged provisions that threaten their rights and interests. In Yocum v. Pennsylvania Gaming Control Board ,, 639 Pa. 521, 161 A.3d 228, 236-37 (Pa. 2017), we found standing where the plaintiff faced the choice of either violating a statute by accepting new employment in the gaming industry, or complying with the statute and forfeiting her right to seek employment in her field of expertise. In Donahue , 98 A.3d at 1229-30, standing was premised upon the choice that a government agency faced: either waste agency resources by complying with an arguably erroneous interpretation of the Right to Know Law by the Office of Open Records, or willfully violate that interpretation and run the risk of increased deemed denials of record requests and an increase in the number of appeals in which the agency would have to participate.
Similarly, in Robinson Township , 83 A.3d at 924, we recognized that the physician-plaintiff should not be forced to choose between violating a statutory confidentiality agreement and violating his legal and ethical obligations to treat a patient in accord with medical standards, or, alternatively, declining to take patients whose care may implicate the statutory confidentiality agreement. In Cozen O'Connor , 13 A.3d at 472, we found standing where a law firm was forced to choose between violating campaign contribution laws by forgiving a client's debt, or declining to engage in the potentially prohibited conduct. In Bayada Nurses, Inc. v. Commonwealth Department of Labor and Industry , 607 Pa. 527, 8 A.3d 866, 876 (2010), where a nursing home challenged wage and hour regulations, we found standing where the nursing home was faced with the option of violating the regulations and incurring penalties and fines, or complying with what it believed to be erroneous requirements. In Shaulis v. Pennsylvania State Ethics Commission , 574 Pa. 680, 833 A.2d 123, 125, 127 (2003), abrogated in part by Yocum 161 A.3d at 237, we held that an attorney had standing where she faced the choice of declining to publish articles or books or violating state ethics rules. And in Arsenal Coal Co., 477 A.2d at 1334-38, standing was premised upon the choice faced by a coal company of compliance with environmental regulations or noncompliance, both of which would impose great costs.
These cases establish a flexible construction of standing designed to avoid placing a plaintiff in the position of having to choose between relinquishing his or her rights and risking punishment for failing to obey a challenged enactment. Where standing is at issue, the germane inquiry will examine the choices that the plaintiff faces when confronting the application or enforcement of a statute, regulation, or ordinance, and the nature of the interest affected. If the government action casts the plaintiff upon the horns of a dilemma—having to choose between exposing herself to sanctions or abrogating her individual rights—then there is a controversy that is subject to judicial resolution.
Appellees here face equally intolerable options that render their action consistent with the conferral of standing in our precedential opinions. The choice between engaging in arguably constitutional activity and facing potential prosecution, or forfeiting one's rights and abstaining from potentially protected conduct altogether, presents precisely the kind of choice that confers standing. See Maj. Op. at 487 (recognizing that "Appellees currently must make a choice to either comply with the ordinances, thereby forfeiting what they view as their constitutionally and statutorily protected firearms rights; or violate the ordinances by exercising their rights, thereby risking criminal prosecution"). Without access to the courts to resolve their dispute, Appellees would be left with no path to challenge the constitutionality of the ordinances other than willfully violating the law.
In centering the standing analysis on the choice a government action imposes upon a plaintiff, this Court explained in Robinson Township, 83 A.3d at 924, that "[o]ur existing jurisprudence permits pre-enforcement review of statutory provisions in cases in which petitioners must choose between equally unappealing options and where the third option ... is equally undesirable." This Court recognized the "unpalatable professional choices" imposed upon the physician-plaintiff, and observed the "untenable and objectionable position" in which statutory compliance placed the physician. Id . These adjectives—unappealing, undesirable, unpalatable, untenable, and objectionable—confuse rather than clarify the position a plaintiff must encounter in order to demonstrate standing. While I agree that standing is premised upon being put in an intolerable position by government enactments, I question this Court's continued use of these descriptors. These identifiers are drawn solely from Robinson Township (repeated, alas, in Yocum , 161 A.3d at 233 ), and they do not necessarily capture the severity of the position in which a plaintiff must find herself in order to establish standing.
Life is full of "unappealing options," "unpalatable choices" and "undesirable" "options." To establish standing, it is not sufficient for a plaintiff to allege that she faces a choice between alternatives that are displeasing or objectionable. Statutes, regulations, and ordinances require citizens to conform their behavior to the requirements of the law. Merely to lack the desire to conform, or simply to find the requirements of the law distasteful, is not to gain standing to challenge the law. Discomfort with legal requirements, without more, does not confer standing. Being forced to choose between abdicating one's rights or willfully violating the law and subjecting oneself to sanctions presents exactly the kind of dilemma that does confer standing.
The Majority rightfully backs away from invoking these problematic adjectives. Maj. Op. at 489–90, n.16. I agree with the Majority that the relevant inquiry is whether the challenged government action forces Appellees to choose between submitting to ordinances which they believe violate their constitutional rights or suffering government sanction for vindicating these rights.
The ordinance challenged in NRA/Pittsburgh stated, "No person who is the owner of a firearm that is lost or stolen shall fail to report the loss or theft to an appropriate local law enforcement official within twenty-four (24) hours after the discovery of the loss or theft." NRA/Pittsburgh , 999 A.2d at 1258 (citing Pittsburgh City Code § 624.01). The Pittsburgh ordinance punished first-time violators by a fine of up to $500, and subsequent violations by a fine of up to $1,000 and/or imprisonment of up to 90 days. Id.
Leach v. Commonwealth , 636 Pa. 81, 141 A.3d 426, 435 (2016).
Although this case arises in the context of the right to bear arms, our standing jurisprudence does not favor the Second Amendment and Article I, section 21 over any other constitutional right. Plaintiffs seeking to challenge laws or ordinances must establish standing regardless of the right they seek to vindicate. Challengers relying upon the Second Amendment—like challengers relying upon other constitutional bases—must allege a substantial, direct, and immediate interest.
Pre-enforcement review is an equitable principle driven by the need to avoid imposing impossible choices upon plaintiffs. We do not require plaintiffs to violate laws or regulations and subject themselves to sanctions for engaging in protected conduct as the price of admission to the courthouse. The rights guaranteed to the citizens of this Commonwealth do not depend upon an individual's willingness to subject herself to the risk of jail or criminal penalties to assert her rights. Resolving uncertainty in accord with liberal construction of the Act means that the courthouse doors are open to resolve the constitutionality of statutes and ordinances without requiring that the individual put his or her life, liberty, or property on the line by first violating the statute or ordinance and being subject to enforcement. Nor does the individual have to face economic hardship or professional disaster. Having a substantial interest "simply means that the individual's interest must have substance—there must be some discernible adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law." William Penn Parking Garage , 346 A.2d at 282.
Just as there is no special standing exception for the Second Amendment, there is no special standing exception for ethical or professional obligations or for physicians, industrialists, or professionals. See Maj. Op. at 490–91. The City views the holding of Robinson Township as being limited to circumstances where an individual is presented with "professional choices" between abrogating an ethical or professional responsibility and violating a statute. Appellant's Brief at 20 (quoting Robinson Twp ., 83 A.3d at 924 ). Because Appellees "have no professional or ethical obligation" to discharge their firearms in the City, carry them in a public park, fail to report them lost or stolen, or to allow minor children to possess firearms, the City distinguishes Robinson Township. Id. at 21. According to the City, without a choice foisted upon the plaintiffs by professional or ethical obligations, there is no harm comparable to that experienced by the physician in Robinson Township and, therefore, no standing. Id .; Appellant's Reply Brief at 13.
The City is incorrect, and the Majority rightly rejects this proffered limitation on standing. Maj. Op. at 490. We do not require plaintiffs to claim or establish a professional or ethical obligation in order to establish standing under the Act. Nor are plaintiffs required to establish a pecuniary impact on their conduct. While such allegations certainly may confer standing, standing is not limited to those allegations. To the contrary, the Act is to be "liberally construed and administered" toward the goal of settling and affording "relief from uncertainty and insecurity with respect to rights, status, and other legal relations," 42 Pa.C.S. § 7541(a), without being limited to professional or economic harm. It is enough that Appellees arguably have a constitutional right to engage in prohibited conduct. The City's argument would rob standing of the flexibility that ensures access to the courts to citizens invoking individual constitutional rights and seeking to protect their activities in pursuit of those rights.
I agree with the Majority that Appellees have satisfied all of the prerequisites for standing to bring a declaratory judgment action. As individuals who lawfully possess firearms, and the association that represents them, Appellees seek declaratory and injunctive relief to protect what they view as an infringement upon their constitutional rights and liberties. The position into which the ordinances places them—having to decide between violating the ordinances and subjecting themselves to sanctions or forfeiting what they believe to be their constitutional rights—confers standing within our prudential standing framework. As the lower court observed, "[t]he current, actual, and threatened enforcement of the challenged ordinances has a chilling effect on the Individual Plaintiff's rights to engage in constitutionally protected activities with respect to firearms." Firearm Owners Against Crime v. City of Harrisburg , 218 A.3d 497, 506 (Pa. Cmwlth. 2019). Like the physician in Robinson Township , Appellees "have no real alternative to address their grievance." Id . at 513.
The City would have us restrict our prudential standing construct in a manner reminiscent of standing in the federal courts under Article III of the United States Constitution. Doing so would close the courthouse doors in the Commonwealth to individuals and organizations seeking to vindicate rights they believe to have been abrogated and unduly circumscribed by state or local action. We are not a federal court, and we are not constrained by the limiting principles that apply under the federal constitution. See Maj. Op. at 481–82. The legislative branch, the executive branch, and local municipalities bear responsibility for enacting legislation or regulations that do not unduly infringe upon the rights of our citizens. When government conduct is challenged, the judiciary ensures that the rights of the individual are vindicated when infringed. If the government's actions threaten individual rights, those individuals have access to the courts to challenge government conduct. Under the Act, they may do so without first subjecting themselves to arrest, threats of arrest, or warnings about potential enforcement action. As our Founder recognized, delaying justice until one is sanctioned by the full force of the law is no justice at all. See WILLIAM PENN, SOME FRUITS OF SOLITUDE 86 (Headly Bros. 1905) (1693) ("Our Law says well, to delay justice is injustice.").
U.S. Const. art. III.
Philadelphia Code §§ 20-1002(1) & (2) (regarding contribution limits for candidates for City elective office).
Unlike federal courts, courts in this Commonwealth are open to resolve all controversies impacting the rights of Pennsylvanians and are vested by Article V, section 1 of the Pennsylvania Constitution with all judicial authority. Our standing considerations account for many varied disputes that would fall short of constituting "cases and controversies" in federal court. As we have observed, "[i]n contrast to the federal approach, notions of case or controversy and justiciability have no constitutional predicate, do not involve a court's jurisdiction, and are regarded instead as prudential concerns implicating courts’ self-imposed limitations." Robinson Twp ., 83 A.3d at 917 ; see also In re Hickson , 573 Pa. 127, 821 A.2d 1238, 1243 n.5 (2003) ("State courts... are not governed by Article III and are thus not bound to adhere to the federal definition of standing. ... Furthermore, the Pennsylvania Constitution has no counterpart to Article III's ‘case or controversy’ requirement."); Hon. Jack Landau, Forward: State Constitutionalism and the Limits of Judicial Power , 69 Rutgers L. Rev. 1309, 1310-11 (2017) ("[T]he essential underpinnings of federal justiciability doctrine do not translate well to state courts. The nature of the broad ‘judicial power’ conferred in state constitutions is different from the limited authority that the framers of our Federal Constitution spelled out in Article III.").
The Friends of Bob Brady Campaign Committee ("Committee"), a political action committee supporting Robert Brady's campaign for the Democratic Party nomination to serve as Mayor of Philadelphia, sought an advisory opinion to determine how it could legally retire outstanding debt it owed to the firm following the election. More specifically, the Committee sought to retire $448,468.09 in legal fees owed to the firm for its representation of candidate Brady in a legal dispute regarding the election. O'Connor , 13 A.3d at 465. Thus, the advisory opinion was sought to guide the conduct of the Committee and the firm with regard to the outstanding debt the Committee owed the firm.
Accord Muhammad v. Strassburger , 526 Pa. 541, 587 A.2d 1346, 1350 (1991) ("Justice delayed is justice denied.") (citation omitted).
Philadelphia Code § 20-1001(6) (defining contributions).
DISSENTING OPINION
CHIEF JUSTICE BAER
I respectfully dissent because I believe that the majority has expanded improperly the traditional notion of standing. In my view, Firearm Owners Against Crime ("FOAC"), Kim Stolfer, Joshua First, and Howard Bullock (collectively, "Appellees") have failed to allege facts in their complaint establishing that each challenged ordinance promulgated by the City of Harrisburg ("City") directly and immediately affects, regulates, or impairs their possession, use, or enjoyment of their firearms. Notably absent from Appellees’ complaint is any allegation that they engaged in the particular conduct prohibited by the ordinances or immediately intended to do so, or that the ordinances are at all applicable to their personal circumstances. Accordingly, I would hold that Appellees have failed to establish a substantial, direct, and immediate interest sufficient to afford them standing.
As observed by the majority, this appeal involves challenges to the following four sections of the Codified Ordinances of Harrisburg ("Code"), which regulate, in some manner, the use, possession, or ownership of firearms in the City: (1) the Discharge Ordinance, Code Section 3-345.2, which restricts the discharge of firearms within the City to enumerated accredited educational facilities or approved firing ranges; (2) the Parks Ordinance, Code Section 10-301.13, which prohibits the use and possession of firearms within City parks; (3) the Minors Ordinance, Code Section 3-245.1, which renders it unlawful for unaccompanied minors to possess firearms in the City outside of their residences; and (4) the Lost/Stolen Ordinance, Code Section 3.345.4, which requires firearm owners to report lost or stolen firearms to law enforcement within 48 hours of discovery of the loss or theft.
In concluding that the averments in Appellees’ complaint were sufficient to establish their standing to commence a declaratory judgment action challenging the constitutionality and statutory preemption of these ordinances, the majority relies upon the averments in the complaint establishing that Appellees lawfully possessed firearms and are licensed to carry concealed firearms; they live, commute, or travel to the City; they generally fear criminal prosecution under all the ordinances because City officials indicated in public statements that they intend to enforce some of the ordinances; and one of FOAC's members is a minor who resided in the City and lawfully possessed firearms. Majority Opinion at 487. Respectfully, contrary to the majority, I find these facts insufficient to establish that each particular ordinance substantially, directly, and immediately affects Appellees’ possession, use, or enjoyment of their firearms.
As the majority observes, it is well established that, prior to judicial resolution of an action seeking declaratory and injunctive relief, a party must, as a threshold matter, demonstrate standing. Pittsburgh Palisades Park, LLC v. Commonwealth , 585 Pa. 196, 888 A.2d 655, 659 (2005). The traditional notion of standing focuses upon the idea that the litigant must be impacted adversely or aggrieved by the matter he seeks to challenge. William Penn Parking Garage v. City of Pittsburgh , 464 Pa. 168, 346 A.2d 269, 280-81 (1975) (plurality). A litigant demonstrates that he or she is aggrieved by establishing a substantial, direct, and immediate interest in the outcome of the litigation. Pittsburgh Palisades Park, LLC , 888 A.2d at 660. This Court has clarified:
An interest is substantial if it is an interest in the resolution of the challenge which surpasses the common interest of all citizens in procuring obedience to the law. Likewise, a direct interest mandates a showing that the matter complained of caused harm to the party's interest, i.e. , a causal connection between the harm and the violation of law. Finally, an interest is immediate if the causal connection is not remote or speculative.
Id. (internal citations and quotations omitted).
These requisites have not been satisfied here. Initially, while not dispositive of the standing determination, there is no allegation in Appellees’ complaint that they have been charged or convicted of violating any of the challenged ordinances, which averment would have satisfied all three requisites for standing. More significantly, however, Appellees failed to aver that their interest in this litigation is substantial, direct, and immediate. Stated differently, Appellees have included no assertions in their complaint that they engaged in or immediately intended to engage in the particular conduct prohibited by the ordinances or that the various ordinances are even applicable to their personal circumstances.
Specifically, relating to the Discharge Ordinance, Appellees have failed to allege any facts establishing that they currently discharge their firearm within City limits outside of accredited educational facilities or approved firing ranges or that they intend to do so in the near future, and, thus, suffered direct and immediate harm from the ordinance's restrictions. In connection with the Parks Ordinance, Appellees likewise have not averred a single fact indicating that they possess or use their firearm in City parks or have a present desire to do so. Similarly, Appellees have not pled facts establishing that their member who is under the age of 18 possesses or immediately intends to possess firearms in the City outside of his or her residence, while unaccompanied by an adult. Finally, Appellees have included no assertion in their complaint that any of them had a firearm that was lost or stolen, thereby subjecting them to the 48-hour reporting requirement established by the Lost/Stolen Ordinance, or that they would disobey the ordinance's reporting requirement if they had a lost or stolen firearm. Whether any of Appellees will lose a firearm or have a firearm stolen in the future is pure speculation; thus, there is no immediate interest that is affected by the ordinance's reporting requirement.
In sum, Appellees have made no averment that the ordinances apply to their particular circumstances in a manner so as to burden their constitutionally-protected right to bear arms.1 I recognize that a court reviewing preliminary objections in the nature of a demurrer accepts as true all material facts pled in the complaint, as well as any reasonable inferences deducible therefrom. Commonwealth by Shapiro v. Golden Gate Nat'l Senior Care LLC , 648 Pa. 604, 194 A.3d 1010, 1022 (2018). This Court may not, however, infer reasonably that Appellees engaged in the particular conduct prohibited by the four separate ordinances or immediately intended to do so, or that the ordinances are applicable to the personal circumstances of Appellees, either individually or as a group. To do so would turn standing jurisprudence on its head, as a court could always infer that the plaintiffs may engage in conduct in the future that the challenged ordinance prohibits, reasoning that, otherwise, the plaintiffs would not have filed their legal action.
Appellees’ deficient pleading is not surprising, considering that when they filed their complaint on January 16, 2015, they relied upon the statutory provisions of Act 192 of 2014, which granted automatic standing to organizations such as the FOAC, who were alleged to be adversely affected by certain firearms restrictions, and, notably, defined a "[p]erson adversely affected" as including a "resident of this Commonwealth who may legally possess a firearm under Federal and State law." See Appellees’ Complaint, 1/16/2015, at 5 (citing Subsections 6120(a.2), and (b) of the Uniform Firearms Act).2 Thus, at the time Appellees filed their complaint, an assertion that they lawfully possessed firearms was sufficient to afford them standing to commence the instant litigation.3 However, on June 25, 2015, subsequent to the filing of Appellees’ complaint, the Commonwealth Court in Leach v. Commonwealth , 118 A.3d 1271 (Pa. Cmwlth. 2015), declared that Act 192 was unconstitutional in violation of the single-subject rule of Article III, Section 3 of the Pennsylvania Constitution. This Court affirmed the intermediate appellate court's ruling, Commonwealth v. Leach , 636 Pa. 81, 141 A.3d 426 (2016). As Act 192 was invalidated, there is no current statutory provision affording Appellees automatic standing based solely on their status as individuals who may lawfully possess firearms. Thus, traditional concepts of standing apply.
Respectfully, regarding this provision, the majority expands improperly the well-established requisites for standing, i.e., a substantial, direct, and immediate interest, to encompass the general averments set forth by Appellees. By doing so, this Court has effectively breathed new life into the now defunct Act 192 by sanctioning automatic standing to challenge any and all firearm ordinances upon a mere showing that the plaintiff may lawfully possess a firearm, without requiring a demonstration that the challenged ordinance has any substantial, direct, or immediate impact on the plaintiff's constitutionally-protected right to bear arms. This expansion of the general concept of standing could reach farther than cases challenging firearm regulations, potentially allowing citizens to challenge myriad local ordinances, at a municipalities’ legal expense, without suffering the requisite harm required to commence an action.
It is beyond cavil that Appellees have constitutionally-protected rights relating to their lawful possession and use of firearms and that they must not be forced to violate the law and subject themselves to prosecution to challenge ordinances that burden those rights. However, traditional notions of standing remain applicable, which require a demonstration that Appellees are aggrieved by the particular ordinances that they challenge, i.e. , that their direct interest in the outcome of the litigation surpasses the common interest of all citizens and is not remote or speculative. A mere assertion that the plaintiff is an individual who may lawfully possess a firearm in the City does not, under current jurisprudence, establish that the individual is aggrieved by any and all ordinances that purport to regulate firearms.
Respectfully, I do not believe that this Court's holding in Robinson Township v. Commonwealth , 623 Pa. 564, 83 A.3d 901 (2013) (Opinion Announcing the Judgment of the Court), compels a different result. In Robinson Township , a physician challenged those portions of a statute that restricted him from obtaining and sharing information with other physicians regarding the chemicals used in natural gas drilling operations. The physician argued that he was aggrieved by the statute because the confidentiality provisions restricting the transfer of information impeded his ability to diagnose and treat his patients. The Commonwealth Court held that the physician lacked standing until he requested confidential information on behalf of a particular patient and that request was either denied or the information disclosed was restricted in a manner so as to render the physician unable to treat his patient properly.
This Court reversed the Commonwealth Court's standing determination, finding that it placed the physician in an untenable position because it required him either to violate the statute's confidentiality provisions, violate his professional and ethical obligations to treat his patients properly, or refuse to treat patients when he feared that he would have to choose between providing patient care and violating the statute. We explained that pre-enforcement review of statutory provisions is permitted when a party "must choose between equally unappealing options and where the third option, here, refusing to provide medical services to a patient, is equally undesirable." Id. at 924.
Unlike in Robinson Township , there is no Hobson's choice presented in this appeal; rather, merely a fatal defect in fact-pleading caused by Appellees’ failure to allege sufficient facts in their complaint establishing that their constitutionally-protected right to bear arms was burdened by the particular ordinances challenged. The trial court reached this conclusion when it granted Appellants’ preliminary objection in the nature of a demurrer, holding that Appellees had not plead any facts to show that they were harmed by any of the subject ordinances, and that the asserted potential harm was entirely speculative, as it may never occur. See Trial Court Opinion, 10/29/2019, at 4 (citing Gulnac by Gulnac v. S. Butler Cty. Sch. Dist. , 526 Pa. 483, 587 A.2d 699, 701 (1991) (providing that a "declaratory judgment must not be employed to determine rights in anticipation of events which may never occur or for consideration of moot cases or as a medium for the rendition of an advisory opinion which may prove to be purely academic")).
In fact, the law on this particular issue, at least to the extent applicable to the Lost-Stolen Ordinance, was settled by the Commonwealth Court until reversed by that court's decision below, which the majority herein affirms. In National Rifle Association v. City of Pittsburgh , 999 A.2d 1256 (Pa. Cmwlth. 2010) (" NRA/Pittsburgh "), the Commonwealth Court dismissed for lack of standing a challenge to the City of Pittsburgh's Lost/Stolen firearm ordinance because the plaintiffs "have never violated the ordinance, do not allege that they would disobey the ordinance if one of their guns is lost or stolen, and do not allege that a gun has been lost or stolen since the ordinance has been enacted."4 Id. at 1259. Thus, the court concluded, the possibly of harm was remote and speculative, and the plaintiffs lacked standing. Id. The NRA/Pittsburgh decision relied upon a similar case previously decided by the Commonwealth Court in National Rifle Association v. City of Philadelphia , 977 A.2d 78 (Pa. Cmwlth. 2009) (" NRA/Philadelphia "), which held that the plaintiffs lacked standing to challenge Philadelphia's ordinance requiring the reporting of lost or stolen firearms because they had not demonstrated direct and immediate harm, as the possibility that one of the plaintiffs might lose a gun in the future, fail to report it, and then be punished was remote and speculative. In deeming Appellees’ factual averments in this case to be sufficient to establish standing, the Commonwealth Court acknowledged that its decision was in direct conflict with that court's prior rulings in NRA/Pittsburgh and NRA/Philadelphia . See FOAC v. Papenfuse , 218 A.3d 497, 512 (Pa Cmwlth. 2019) (stating "[w]e recognize that our decision here, affording traditional standing to Individual Plaintiffs and FOAC, conflicts with our precedent in NRA/Pittsburgh and NRA/Philadelphia ... "). The Commonwealth Court, however, found that those intermediate appellate court cases should be overruled as inconsistent with this Court's decision in Robinson Township. FOAC, 218 A.3d at 513. For the reasons set forth supra , this reasoning is unpersuasive as the circumstances in NRA/Pittsburgh and NRA/Philadelphia , like the instant case, do not force citizens to make the untenable choice of foregoing a constitutional challenge or violate the ordinance and risk criminal prosecution to afford themselves standing. Instead, they must simply allege facts sufficient to demonstrate that they were aggrieved by the particular ordinances challenged. This, Appellees failed to do.
Accordingly, I would vacate the order of the Commonwealth Court and reinstate the order of the trial court that granted Appellants’ preliminary objection in the nature of a demurrer for failing to plead standing to sue.
Justices Todd and Donohue join this dissenting opinion.
DISSENTING OPINION
JUSTICE DONOHUE
I dissent. Ostensibly in an effort to liberally construe the Declaratory Judgments Act,1 what the Majority instead accomplishes is the elimination of the foundational requirement for any plaintiff to maintain a cause of action – that the plaintiff be aggrieved.
The Declaratory Judgments Act is undeniably intended to be liberally construed. The General Assembly declared that the purpose of the Act is "to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations and is to be liberally construed and administered." 42 Pa.C.S. § 7541(a). Indeed, the recognition of pre-enforcement statutory challenges embraces the liberal construction principle. Likewise, the Declaratory Judgments Act is available to an interested person who may have determined any question of validity under a statute or ordinance and obtain a declaration of rights thereunder. Id. § 7533.
From the language of the Declaratory Judgments Act, we know that a plaintiff must be uncertain or insecure in his or her rights under a statute or ordinance in order to have those rights determined under the challenged statute or ordinance. Id. § 7541(a). To establish the requisite uncertainty or insecurity and thus, attain standing, "a plaintiff must allege an interest which is direct, substantial and immediate[.]" Majority Op. at 482. As the writings in this case establish, this Court has visited the availability of pre-enforcement review of a legislative branch enactment on many occasions and concluded that such review is available under the Declaratory Judgments Act if the three types of interest are alleged. Through these cases, we have determined that the uncertainty and insecurity earmarked for resolution under the Declaratory Judgments Act must be actual uncertainty and insecurity, not hypothetical, speculative or theoretical. What distinguishes this case from the many that came before it is that the Appellees here have alleged no facts to establish entitlement to a court's adjudication of their claim for declaratory relief.
Respectfully, the Majority marginalizes the allegations in support of the plaintiffs’ standing in the cases they rely upon to expansively confer standing on these Appellees in their pre-enforcement constitutional challenges to the City of Harrisburg's ordinances.2 In prior cases in which we found pre-enforcement standing, the plaintiffs alleged concrete circumstances that resulted in their actual aggrievement by the enactments they sought to challenge. There are no such allegations here. Appellees filed a complaint based solely on their ownership of firearms and subjective fear of prosecution. As Chief Justice Baer insightfully explains, at the time Appellees filed their Complaint, they asserted that they "lawfully possessed firearms" because this assertion alone "was sufficient to afford them standing to commence the instant litigation." Dissenting Op. at 499. Relying on Act 192,3 which has since been declared unconstitutional,4 Appellees did not allege that the provisions they sought to challenge actually and concretely aggrieved them, that they had been forced to modify their conduct to conform to the law, or that they wished to act contrary to the law. The Majority's stark departure from our precedent to confer standing on these plaintiffs is evident from a review of those cases where the plaintiffs alleged that they would be directly and immediately harmed by enforcement of the challenged provision.
In O'Connor v. City of Philadelphia Board of Ethics , 608 Pa. 570, 13 A.3d 464, 471 (2011), the Cozen O'Connor law firm challenged the interpretation in an ethics opinion of Sections 1002(1) and (2) of the Philadelphia Code5 by the Philadelphia Board of Ethics ("Ethics Board"). The opinion had been solicited to guide the conduct of the law firm.6 The Ethics Board issued a formal opinion concluding that contributions exceeding Sections 1002(1) and (2)’s limits, "which are received after an election to retire campaign debt, are prohibited." Id . at 466. The firm filed a declaratory judgment action seeking a declaration that post-election contributions were not "contributions" within the meaning of the Philadelphia Code.7 In its complaint, the firm alleged that it was aggrieved by the Ethics Board opinion, stating that the Ethics Board and the City " ‘improperly restricted ... its ability to raise funds to pay off post-campaign debts and [the firm], according to the [Ethics Board and the City], cannot forgive the debt without violating election laws.’ " Id . at 466 (citing Complaint, ¶ 8). The firm also alleged that, if the Ethics Board opinion's interpretation stands, it " ‘would be legally unable to forgive any of the debts owed to it by the campaign....’ " Id . at 471 (citing Complaint, ¶ 67). In addressing whether the firm had standing, this Court observed that, "[a]lthough the [f]irm did not set forth the exact phrase ‘that it intends to forgive the debt at one time and in toto ,’ such is certainly contemplated by the above cited paragraphs[ ]" from the Complaint. Id . at 471-72. The Court thus cited to specific paragraphs of the Complaint as evincing the firm's desire to forgive the debt contrary to the Ethics Board's interpretation of Sections 1002(1) and (2) of Philadelphia Code. The firm was aggrieved in that it could not forgive the debt and the Complaint contained allegations that it desired to do so.
The complaint in O'Connor explicitly alleged that " ‘the [f]irm would be unable to forgive any of the debt owed to it by the campaign,’ " under the Ethics Board's interpretation. O'Connor , 13 A.3d at 471 (citing Complaint, ¶ 67). The Ethics Board asserted that the firm did not adequately plead that it intended to forgive the debt because it did not explicitly state that the firm intended to forgive the debt at one time and in toto. The Court did not excuse the firm from alleging that it was concretely impacted by the Ethics Board's interpretation of the code but recognized that there are no magic words that a plaintiff must use to set forth an intention to act contrary to the law (the Ethics Board opinion) to satisfy the direct and immediate harm requirements. There, the complaint "certainly contemplated" such an intention and therefore, satisfied the requirements. Id . at 472.
In Robinson Township v. Commonwealth , 623 Pa. 564, 83 A.3d 901 (2013), each of the plaintiffs bringing a challenge to Act 13 alleged the specific manner in which they were actually aggrieved by its implementation. First, the physician asserted that the challenged provisions of Act 13 "impede[d] his ability to diagnose and treat his patients properly." Id . at 923. Second, members of the Delaware Riverkeeper Network alleged that their home values were negatively impacted by the change in the zoning laws which would permit oil and gas operations in their districts. Id . at 922. Finally, various municipalities alleged that Act 13 "require[d] them ... to create new exceptions for the oil and gas industry that are inconsistent with long-established municipal land use plans." Id . at 919. As such, the physician, Delaware Riverkeeper Network, and the municipalities all alleged that they were concretely and negatively impacted by the implementation of Act 13 because their current conduct or actual circumstances were modified by its dictates.
Act 13 of Feb. 14, 2012, P.L. 87, 58 Pa.C.S. §§ 2301 -3504.
The Court addressed Delaware Riverkeeper Network's standing by piggybacking on the Commonwealth's concession that landowners Brian Coppola and David M. Ball, who claimed that their home values were negatively affected by the oil and gas operations, had standing. Robinson Twp ., 83 A.3d at 918.
In Commonwealth, Office of Governor v. Donahue , 626 Pa. 437, 98 A.3d 1223 (2014), after the Office of the Governor ("OG") was subjected to the Office of Open Records’ ("OOR") interpretation of Section 901 of the Right to Know Law ("RTKL"), which shortened the window for responding to RTKL record requests, it sought to challenge OOR's interpretation of Section 901. The OG contended that the interpretation made it difficult to timely respond to RTKL requests and comply with Section 901, which meant a greater likelihood of deemed denials, and an increase in the number of RTKL matters that OG would have to adjudicate. Id . at 1230. More specifically, the OG alleged that OOR's interpretation "would force OG to alter both the manner in which it communicates with the public and the manner in which it litigates RTKL matters, thus imposing significant administrative burdens on OG." Id. at 1229. The OOR's interpretation had already resulted in aggrievement and would continue to do so if not addressed and corrected by the courts. The OG thus described how it was significantly burdened by the OOR's interpretation of the timing provision because its current protocols were impacted.
Act 3 of Feb. 14, 2008, P.L. 6, 65 P.S. § 67.901.
In Yocum v. Gaming Control Board , 639 Pa. 521, 161 A.3d 228 (2017), a member of the Gaming Control Board alleged that she desired to pursue a career outside of the Gaming Board, but that law firms had informed her that the employment restrictions she sought to challenge would inhibit potential employers’ willingness to hire her. Id . at 235 (citing Petition for Review, ¶¶ 23, 31-33). She demonstrated she was concretely aggrieved by the employment restrictions by alleging that she was legally prohibited from seeking employment in the gaming field, that she desired to do so, and that employers in the field told her the restrictions would inhibit her ability to obtain employment. Id . The plaintiff alleged the challenged provisions negatively and concretely affected her current circumstances.
As demonstrated, the plaintiffs in O'Connor, Robinson Township, Donahue, and Yocum filed Declaratory Judgments Act actions to challenge laws which concretely and negatively impacted their actual circumstances at the time of filing their complaints. In each of these cases, the challenged laws required the plaintiffs to modify their behavior to their detriment, thereby establishing not only an interest superior to the ordinary citizen but a demonstrable interest that was direct and immediate. Respectfully, it is not possible to reconcile these cases with the Majority's holding in this case.
The same is true for the cases cited by the Majority involving pre-enforcement challenges to laws not brought under the Declaratory Judgments Act. In each of the cases, the plaintiffs made allegations that they were actually aggrieved by the enforcement of the challenged law. In Arsenal Coal Co. v. Commonwealth, Department of Environmental Resources , 505 Pa. 198, 477 A.2d 1333, 1340 (1984), anthracite coal mine operators and producers challenged regulations imposed specifically on their industry and operations and "alleged that the regulations require the expenditure of substantial sums of money to comply which, while not immediately calculable, will substantially impair the[ir] cash flow[.]" There was no question that compliance would be immediate and costly.
In Shaulis v. Pennsylvania State Ethics Commission , 574 Pa. 680, 833 A.2d 123, 125 (2003), the attorney who had recently retired from working in the Office of Chief Counsel in the Pennsylvania Department of Revenue, filed a petition for review challenging a Pennsylvania State Ethics Commission opinion restricting her representation of clients in matters involving the Department of Revenue. The Ethics Commission opinion aggrieved her in that it "effectively estopped" her from practicing her chosen profession. Id . at 130.
In William Penn Parking Garage, Inc. v. City of Pittsburgh , 464 Pa. 168, 346 A.2d 269, 288 (1975), parking garage operators alleged that the tax established by Ordinance No. 30 of 1973 would cause "a substantial loss to their net income." Compliance with the mandate impacted their current operations.
The plaintiffs in Arsenal Coal Company, Shaulis, and William Penn Parking Garage were engaged in the precise activity regulated by the challenged regulations. The plaintiffs in the case before us do not allege any such engagement in the conduct regulated in the ordinances or the likelihood that they will engage in the conduct or even their desire to do so.
The complaint in this case includes no allegations regarding how the challenged ordinances mandate a modification of the Appellees’ current activities or Appellees’ intent to engage in any of the regulated conduct. Appellees rely on the abstract concept that these ordinances "have a causal effect on [their] lawful ownership, possession, transport, transfer, and use of firearms in the City...." Appellees’ Brief at 22. While this may theoretically be true, nothing in the ordinances criminalize these attributes of gun ownership. Unless the ordinances have an actual impact on the Appellees’ conduct, there is no justiciable interest and the Appellees lack standing to seek a declaration that the ordinances are unconstitutional.
While a firearm owner may have an interest in these ordinances that is substantial when compared with the interest of an ordinary citizen in upholding the law, mere ownership of a firearm does not establish an immediate or direct interest in the ordinances. Our standing precedent, as set forth in O'Connor, Robinson Township, Donahue, and Yocum, requires that a plaintiff's conduct or concrete circumstances must be immediately and negatively impacted by the challenged statute or ordinance such that the conduct or circumstances are causally affected by the enactment. These plaintiffs have not alleged any facts to indicate that the ordinances, in any way, impact their actual conduct, activities or plans. Without that causal effect (conduct affected by the ordinances), the Appellees do not have standing to bring this declaratory judgment action.
I join the dissenting opinion of Chief Justice Baer and would reverse the decision of the Commonwealth Court.
Chief Justice Baer and Justice Todd join this dissenting opinion.